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U.S. Supreme Court will not hear same-sex child custody case

There are many different ways a same-sex couple in Tennessee can have a child. One option they may choose is to have a child using a sperm donor via artificial insemination. However, this brings up issues regarding child custody if the parents get a divorce.

According to news reports, an issue regarding same-sex marriage law will not be heard by the United States Supreme Court. At issue was the parental rights of a lesbian couple who had divorced. The question concerned whether a child born while the couple was married using a sperm donor was the legal child of the parent that did not give birth to him. The lower court ruled that the non-biological parent was the child's legal parent, as the child was born while the couple was married.

Back in 2008, the couple got married in California, which allowed same-sex marriage before such marriages were permitted in every state. In 2010, the couple had a child via artificial insemination. They used genetic material from a sperm donor and an egg from one of the spouses. In 2011, the child was born in Arizona.

The couple executed a parenting agreement. In that document they stipulated that if they divorced the child's biological mother would always consider the non-biological mother to be the boy's parent. The two spouses also had mirror wills wherein they both recognized each other as their son's parent.

However, their marriage did not last, and in 2013 the non-biological mother filed for divorce. A child custody battle ensued. The child's biological mother claimed that Arizona law did not have any provisions stating that when it comes to same-sex marriage a child's non-biological parent had parental rights when the child was born using the genetic material of only one spouse. The child's non-biological parent argued she should have parental rights over the child.

The Arizona Supreme Court sided with the child's non-biological parent, and since the U.S. Supreme Court will not hear the case the ruling by the Arizona Supreme Court will stand. The couple will now pursue their divorce, wherein each party's parenting time and legal decision-making rights will be established.

This case serves as a good example of how complex a same-sex divorce can be, especially if a couple has a child. Same-sex family law is still evolving. Same-sex couples who have a child should take the steps necessary to understand their rights under the law.

Source:, "SCOTUS declines to take up Tucson same-sex parenthood case," Kevin Boughton, March 1, 2018

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