TN Judge: Woman has no rights to child in same-sex divorce case
Knoxville, Tenn. (AP) — A Tennessee judge on Friday ruled that a woman in a same-sex divorce case does not have the legal rights to a child she and her wife have raised because of a 1977 state law on artificial insemination.
The Knoxville News Sentinel reports (http://bit.ly/28S7cHS ) that Knox County Circuit Judge Greg McMillan ruled that as a result of the wording in the old law, the woman could not be legally recognized as a parent.
The decision involves the divorce and child custody case of Erica and Sabrina Witt. The two legally wed in Washington D.C. in April 2014 and then settled in Knoxville. Sabrina Witt gave birth to a baby girl in January 2015 as a result of artificial insemination via anonymous donor. Same-sex marriage was outlawed in Tennessee at the time of the marriage and when the child was born. Tennessee didn't even recognize same-sex marriages from other states. As a result, Erica Witt's name was not placed on the baby's birth certificate.
When Sabrina Witt filed for divorce last February, her attorney argued that the sole Tennessee law on artificial insemination says that parental rights, other than those of the mother, only apply to husbands.
"That terminology is not interchangeable," attorney John Harber argued at the hearing Friday. He said that under the statute, Erica Witt would not qualify as a parent.
The U.S. Supreme effectively legalized gay marriage in all the states in a landmark ruling last year. As a result of that ruling, Erica Witt's attorney argued that the court should find Tennessee's artificial insemination law unconstitutional.
"The argument that marriage may only consist of a 'husband' and a 'wife' has been held to be unconstitutional," said Virginia Schwamm, a lawyer representing Erica Witt. "(Tennessee marriage certificates) still (indicate) male and female, but surely that no longer applies. Just because the statute reads man and woman, this court can interpret the statute in a manner that makes it constitutional."
The attorney argued that Erica Witt had been committed to raise the child and the paramount consideration for the judge to make was what was in the best interest of the child.
However, McMillan ruled that his hands were tied by a strict reading of the artificial insemination law and that it was not up to the court to enact "social policy."
"I believe as a trial court I am not to plow new ground, but to apply precedent and the law," McMillan said.
The judge did allow Erica Witt to appeal before he made a final ruling in the divorce case, saying it was more appropriate for the Tennessee Court of Appeals to weigh in.
In the meantime, he ruled that Erica Witt could apply for visitation in the same manner that a stepparent could apply. However, without the recognition of being a legal parent, Erica Witt will not be able to have a say in important decisions in the child's life, including medical needs and the girl's education. She also doesn't have to pay child support.
Erika Witt left the courtroom in tears.
Information from: Knoxville News Sentinel, http://www.knoxnews.com
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The Gayly – June 25, 2016 @ 7 a.m.