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Home » Child Custody » Marriage Equality Brought to Forefront by Knoxville Judge

Marriage Equality Brought to Forefront by Knoxville Judge

judge gregory mcmillan's face over the gay pride colorsIt’s been a year since same-sex marriage was legalized by the Supreme Court of the United States in its landmark ruling on Obergefell v. Hodges. As the nation celebrated our first official anniversary of marriage equality, one Tennessee judge decided to take on the role of Grinch: Knox County Fourth Circuit Judge Gregory S. McMillan, who denied parental rights to one spouse in a same-sex divorce due to her being a woman.

McMillan’s ruling concludes a tense divorce between Erica and Sabrina Witt. The soon-to-be exes tied the knot in 2014, marrying in Washington D.C. because same-sex marriage wasn’t legal quite yet. One year later, the Witts had moved into a house in Knoxville and Sabrina had brought a lil’ baby Witt into the world, with the help of an anonymous sperm donor. Sadly, the arrangement failed to work out — Sabrina filed for divorce from Erica in February of this year. She’s since been trying to keep Erica from being granted parental rights.

The Letter of the Law

Erica’s situation reached a dramatic peak last Friday, June 24th, after Sabrina Witt’s lawyer, John Harbor, argued that the language in a Tennessee law on artificial insemination don’t establish a binding relationship between children and non-biologically related parents… in same-sex divorces. If she were a “husband,” she’d be fine. Oh, also, the law was passed in 1977. Tennessee is apparently referencing 40-year-old laws to deal with same-sex divorces because nobody’s had a chance to write up new ones.

John Harbor’s argument relied on two factors: A, that Tennessee’s only legislation related to parental rights in artificial insemination cases was the aforementioned law passed in 1977, and B, that the law’s “terminology is not interchangeable.” The terminology in question, unsurprisingly, is a “married woman’s husband.” Erica is a woman, and only men can be husbands! Strictly abiding by the letter of the law seems to be John Harbor’s strategy in this case, and it’s a strategy that seems to be effective.

Part of the problem is the timing, of course. You have to be married to get a divorce, and it’s only been a little over a year since same-sex couples could even get married. The fact that Erica and Sabrina Witt said their vows in that awkward period just before the Obergefell ruling is pretty important to note — the Witts had to get married out of state because Tennessee hadn’t legalized same-sex marriage. But then they had a kid in Tennessee. And that meant the kid’s birth certificate was written according to Tennessee’s laws at the time. The result was that Erica Witt wasn’t allowed to be listed as a parent on her own child’s birth certificate.

As previously mentioned, 4th Circuit Court Judge Greg McMillan eventually sided with John Harbor and Sabrina Witt:

“I believe this is a situation where [Erica Witt] has no biological relationship with this child, has no contractual relationship with this child.”

His hands are tied, he says! The law is the law, and Tennessee’s law for parental rights in divorces involving children conceived via artificial insemination firmly states that parental rights can only go to the husband — not the wife — of a wife. Very simple, very unfortunate, according to Judge McMillan. But he wants us to know that he’s not the bad guy: Erica Witt can still ask for visitation rights, like a stepparent or something!

Obviously, nothing short of full parental rights is acceptable to Erica Witt, who has, after all, been the full-time parent of this child for the entirety of its tiny life. And while Judge McMillan is either unwilling or unable to help Erica Witt, he is at least allowing her lawyer, Virginia Schwamm, appeal to the Tennessee Court of Appeals. If they’re willing to hear her case, Schwamm will have a second chance to make the case for Erica Witt.

The Child’s Best Interest?

The first rule of Child Custody law in the state of Tennessee is that the kids come first. Put differently, all child custody arrangements are required, by law, to be made based on the best interest of any minor children in question. There are statutory and non-statutory criteria in place that courts are supposed to consider when determining child custody arrangements — again, in the best interest of the children.

What’s on the list of criteria? Emotional ties and love between parent and child, the overall health of the parent, preference of the child, capability of providing basic needs, whether or not a potential household environment is stable, and countless other things.

Now let’s recall what Supreme Court Justice Anthony Kennedy said in his majority opinion ruling in favor of legalizing same-sex marriage:

“Without the recognition, stability, and predictability marriage offers, [same-sex couples’] children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

It would seem as though Justice Kennedy accounted for the well-being of children raised by same-sex parents. And it seems like Judge McMillan missed that part. If nothing else, his ruling will certainly cause the Witts’ child to “suffer the stigma of knowing its family is somehow lesser.” Indeed, what else could the takeaway be here for the child? This kid’s parents got divorced when it was a baby, and the government forced one of them to abandon it. At the best, McMillan’s ruling would make for an awkward parenting arrangement. At the worst, his ruling would give Sabrina Witt the green-light to erase Erica Witt from their child’s life before it even has a chance to remember her.

Those who are familiar with Judge Gregory S. McMillan before might not be surprised by his ruling. In 2014, McMillan found himself in the news for allowing a baby to be baptized against the will of her mother, who had full parental rights. Which is a terrible story to be in the news for, especially when considered alongside his newest ruling. A pattern is emerging, and Judge McMillan would be wise to make sure he’s remembered for upholding the law and not disrespecting the rights of women.

Same-Sex Divorce in Tennessee

In spite of the great strides made since the historic Obergefell v. Hodges ruling, there’s obviously still much work to be done in the fight for gender equality. Same-sex marriage is now the guaranteed right of any citizen of the United States, and like any other constitutional right, it can and should be defended when compromised.

At Turner Law Offices, P.C., our team of attorneys has years of experience working with clients across a wide range of divorce cases — including, of course, same-sex divorces. Whether you’re wrapped up in a nasty child custody battle like Erica Witt or facing a relatively amicable separation, your best course of action is always to first seek the aid of trustworthy legal representation. The sooner you enlist the help of a seasoned divorce attorney, the better your chances of a satisfactory resolution in the courtroom. Time is of the essence, so don’t wait! Call today, or go online to set up your free initial consultation, and meet with a skilled lawyer who’s ready and waiting to get you on track toward the justice you deserve.

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