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Same-sex divorce brings controversial child custody ruling

Married spouses who divorce expect to have some custody rights of their children following the settlement, but a recent decision by a Tennessee county court could complicate that for same-sex couples.

In June 2016, a judge heard the case of a divorcing lesbian couple who had a daughter through artificial insemination. The spouse was denied custody rights following the judge's ruling that she bore "no contractual relationship with the child." The case is rare, but due to the rapid change in federal law from the time the couple was married in April 2014 to this ruling in June 2016, it stands out as an example of the growing pains of societal change.

The Tennessee couple, who were married in Washington D.C., gave birth to the child in January 2015. This action took place five months before the U.S. Supreme Court legalized gay marriage in June 2015. At the time of the couple's marriage and the child's birth, neither the federal government nor the state of Tennessee recognized the legal rights of the couple. Therefore, the birth certificate does not include the name of the woman who did not bear the child.

New law, outdated language

Further, the language of the state's law related to artificial insemination and marriage certificates only applies to heterosexual, "husband" and "wife," couples. A year and a half after the U.S. Supreme Court's ruling on gay marriage, Tennessee lawmakers have yet to address it. Because of this legislative oversight, the language of the law does not always incorporate the needs of same-sex couples into family matters.

Even if a spouse acts faithfully as the child's guardian, he or she may not be entitled to parental rights after divorce due to a contractual technicality. The finalization of the divorce is currently on hold as the plaintiff and her attorney hope to appeal the ruling.

You can't put a price on love

The spouse who was not granted custody rights does not have to pay child support. However, parents and guardians who fight for custody rights want to be involved in the lives of their children despite the costs.

Divorce can be a complicated time both contractually and emotionally, but with the help of the right lawyer, you can navigate the complexity of the law to ensure that your child custody agreement is in the best of interest of the child.

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