Child Born Prior to Same-Sex Marriage Is Child of Marriage

Tennessee child custody and same sex marriage case summary in divorce.

Cedra Deanntre Potts (Taylor) v. Starr Anastasia Potts

Child Born Prior to Same-Sex Marriage Is Child of Marriage

Prior to the legal recognition of same-sex marriage, the parties in this Davidson County, Tennessee, case participated in civil union ceremonies, and decided to have children through in vitro fertilization.  The plaintiff was impregnated with embryos created from plaintiff’s eggs and donated sperm.  Both parties signed several documents as “prospective parent.”  The plaintiff was identified as “patient,” and the defendant was identified as “partner.”

In 2014, the plaintiff gave birth to twins.  About a year later, same-sex marriage was recognized, and they married.  But in 2017, the plaintiff filed for divorce.  Her complaint stated that there were no children born of the marriage.  The defendant took the position that she was a legal parent.

The defendant relied on a Tennessee statute which provided that a man is presumed to be the father if they attempted to marry, but the marriage was not legal.  She argued that this statute applied, given the civil union ceremonies that had taken place prior to the birth.

The trial court sided with the defendant and ordered the defendant’s name added to the birth certificate.  The plaintiff was named primary residential parent, and the defendant was granted 120 days of parenting time.

Three months later, the plaintiff made a motion to have the judgment set aside on the grounds that there was no subject matter jurisdiction.  She argued that the court had no jurisdiction to grant custody to a non-parent.  The defendant took the position that the parentage statute had to be construed in a gender-neutral fashion.  The trial court denied the motion and let its earlier ruling stand.  The plaintiff then appealed to the Tennessee Court of Appeals.

The appeals court first ruled that the issue of jurisdiction was intertwined with the issue of standing:  If the defendant had standing as a “parent” under the statutes, then the court had jurisdiction over the custody of the children.

To determine whether she was a “parent,” the court first look at the statute governing embryo transfers.  Under that statute, the clinic must enter into a contract with the “recipient intended parents.”  In this case, both the plaintiff and the defendant took that role.

The plaintiff argued that the statute did not apply, because it did not involve a donated embryo.  However, the court held this factor was not dispositive.  Similarly, the fact that the defendant was not a genetic parent was not dispositive.  The court concluded that the legislature intended that contract principles, and not biology, would define who was a parent in these situations.

For these reasons, the Court of Appeals concluded that the defendant was a legal parent, and accordingly, the lower court had jurisdiction over the case.  Therefore, it affirmed the judgment of the trial court in all respects.

No. M2020–00170-COA-R3-CV (Tenn. Ct. App. June 2,  2021).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Child Custody Laws in Tennessee.