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Editorial: Marriage Equality Should Apply To Child Custody

An editorial published on June 28th highlights the challenges that many same-sex couples continue to face when it comes to child custody and adoption, in spite of last year’s Supreme Court ruling in favor of marriage equality. Specifically, it draws attention to the blatant discrimination that married same-sex couples who have a child by way of artificial insemination face when their children become the subject of child custody proceedings, and what little sense this makes, given that same-sex couples are supposed to be provided with the same family rights as heterosexual couples.

Although the article focused on how this is an issue in Tennessee specifically, where a judge just recently ruled that Tennessee custody laws cannot be interpreted to accommodate same-sex couples, in fact, it’s still an issue in many states, including Florida. We can only hope that, when this particular case reaches the Court of Appeals, those judges rightfully decide to apply the logic of the Supreme Court in ruling for equality not only in marriage, but on issues such as child custody, as these issues inexplicably overlap with marriage and family.

The Tennessee Case

In the Tennessee case, two women who were married in 2014 and shared a child together by way of artificial insemination in 2015 then filed for divorce in February of this year. Because Tennessee did not recognize same-sex marriage as legal in 2015 when their baby was born, only the birth mother’s name was entered on the baby’s birth certificate. On June 24th of this year, a 4th Circuit Court judge ruled that the mother whose name was not on the birth certificate had zero parental rights because she was not a “husband,” specifically.

The law behind the ruling was enacted in 1977, and, according to this judge (who applied a very strict reading of the language used), implies that artificial insemination can only apply to “husbands.” Because of this monumental decision, the couple’s divorce action has been paused until the Court of Appeals decides whether or not to hear the case.

A Logical Application of the Marriage Equality Case

If/when the Court of Appeals does hear this case, the logical reasoning is that this must be held to be unconstitutional because the Supreme Court already decided that marriage only consisting of a “husband and wife” was, in fact, unconstitutional. It is simply impractical to wait for state legislatures to change the wording on every single law that could possibly be affected by the Supreme Court’s marriage equality decision. Not only would some state legislatures likely avoid taking that step, but during that time, same-sex couples would be denied the very rights that the Supreme Court sought to protect in its decision last year. If same-sex couples now have all the rights and responsibilities associated with marriage, why would that not also apply to child custody and support?

Florida LGBT Family Rights Protection

Sandra Bonfiglio, P.A. is proud to serve LGBT parents in Florida seeking to fight for their rightful child custody rights. We can help with any and all aspects of family law, including child custody, child support, divorce, property division, and other related areas. Contact our office today so that we can assist you.

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