Unmarried Same-Sex Parent Had No Standing to Assert Visitation Rights

Tennessee child custody case summary on same-sex couple but not married.

Sandra Ann Pippin v. Christina Michelle Pippin

In 2011, a child was born to one of the parties in this Wilson County, Tennessee, case.  The biological mother had been artificially inseminated after her partner, also a woman, had made the mutual decision to have a child.  Both women raised the child together as equal parents.  The non-biological parent even changed her name to that of the biological mother, and both women were known to the child as “momma.”  However, the women were never married, and at some point, the relationship hit the rocks and the parties separated.  In 2018, the non-biological parent went to court seeking to establish “de facto parentage,” and Judge John Thomas Gwin was given the task of determining the child’s custody.

After scouring the Tennessee statutes, Judge Gwin ultimately concluded that there was no basis for de facto parentage.  He noted that there were all sorts of de facto parents, “on the street and in real life,” but that Tennessee law didn’t give any legal rights to such persons.  Therefore, he denied the petition.  However, he did grant the non-biological parent visitation while an expected appeal was pending.

The non-biological parent indeed appealed to the Tennessee Court of Appeals.  In May 2020, the appeals court delivered its judgment, in an opinion authored by Judge Richard H. Dinkins, and agreed to by Judge W. Neal McBrayer.

The appeals court first addressed the key issue in the case, namely, whether the non-biological parent even had standing to bring a case.  It concluded that she did not.  It also reviewed the Tennessee statutes.  It first reviewed a statute on the subject of a child born of artificial insemination to a married woman.  But it held that this statute was completely inapplicable because the parties were not married.  It then turned to a statute under which a “man” is rebuttably presumbed to be a father if he receives the child into his home and “openly holds the child out as the man’s natural child.”

The court agreed that this statute had to be interpreted in a gender-neutral fashion.  In this case, the non-biological parent asserted that she did hold the child out as her natural child.

The court, however, noted that in addition to interpreting statutes in a gender-neutral way, it was necessary to use the ordinary and natural meaning of the statutory language.  And in this case, the court held that other portions of the statute showed that the word “father” in the statute was a reference to the biological father.  The court noted that the non-biological parent in this case did not have a biological or genetic connection to the child, and thus could not be said to holding the child out as her “natural child.”

The court then turned to the question of whether there is any such thing as “de facto parentage” that could be recognized legally.   It held that this could not be done.  It pointed out that the Tennessee statutes created a number of “zones of interests” under which people could be legal parents.  Since the party in this case was in none of those categories, the law would not recognize her as a parent.

Since the court concluded that the non-biological parent lacked standing, it held that the lower court had no grounds to grant visitation.  Therefore, it vacated that portion of the order.

For these reasons, the court affirmed the dismissal of the case, and vacated the award of visitation.

Judge Andy D. Bennett dissented from the court’s opinion and penned a separate dissenting opinion, in which he stated that the majority opinion was “stuck in the past” for failing to incorporate the U.S. Supreme Court’s  2015 opinion legalizing same-sex marriage.  After reciting some facts of the case, namely that the two parties had a long-standing relationship, Judge Bennett turned to the statute regarding “openly holding the child out.”  His take was that the majority refused to apply this statute only because the party asserting it was a woman, and this was not a proper gender-neutral construction.

Judge Bennett noted that the lower court had granted visitation for the child to continue “in the only family that he’s ever had,” and said that this statement spoke volumes.  For these reasons, he would have granted the non-biological parent standing.

No. M2018-00376-COA-R3-CV (Tenn. Ct. App. May 14,  2020).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Child Custody Laws in Tennessee.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.