Child custody and dissolution of unmarried relationships

The status of same-sex relationships in the United States has been a topic of much discussion and debate socially and in the law. The U.S. Supreme Court recently addressed the issue, with two separate decisions on questions of same-sex marriage coming down in 2013. These relationships, along with other relationships between non-married people, can have implications for child custody.

An individual who is in a non-married romantic relationship may adopt a child. If the relationship then ends, the question of what happens to the child may not be as obvious as it would be in the case of the divorce of a married couple. This is true even where the family treats both partners as parents of the child.

This past year, the Tennessee Court of Appeals was asked to address this issue in the case of In re Hayden. Two women, Jennifer and Jennie, were involved in a romantic relationship for a number of years. In 2006, the couple took into their home a friend who was pregnant but who had expressed a wish to give the child up for adoption. When the child was born in 2007, Jennifer and Jennie took him home with them. The biological parents relinquished all parental rights. The child referred to both women as his mother, and his last name was Jennifer and Jennie’s last names hyphenated.

In 2011, Jennifer legally adopted the child. Later that year, she moved out of the home and took the child with her. She refused to allow any contact with Jennie. Jennie then petitioned the court to grant her visitation with the child, but this was denied. She then appealed to the Court of Appeals, which reached a decision in 2013.

The court found that Jennie did not have standing to seek custody. “Standing” is a legal requirement in any case. In order to have standing, a person must allege “an injury to a recognized legal right or interest.” The question then became whether Jennie had such a legal right to visitation with the child; the court concluded that she did not. Tennessee law defines a legal parent as any of: (a) the biological mother; (b) a man who is or was recently married to the biological mother; (c) a man who attempted to marry the biological mother but the marriage was ruled invalid; (d) a man who has voluntarily acknowledged paternity; or (e) an adoptive parent of the child.

Jennie was none of these things. She was not the biological mother, nor had she participated in the adoption process. Jennie also argued that she should have standing as being in loco parentis, meaning “in the place of a parent.” The court rejected this argument as well. It noted that the legislature may define who may act in loco parentis, and has done so in the case of stepparents. However, the legislature has not done so in the case of someone who is (1) not biologically related to the child, (2) not married to a biological parent, and (3) has not adopted the child. Therefore, since Jennie did not have an “injury to a recognized legal right or interest” she had no standing.

Matters of child custody can be complex in the ever-changing framework of society in which we live. If you are being denied custody or visitation, you should consult with an experienced attorney as soon as possible to ensure your rights are protected.