Facts: Jennifer J. and Jennie G. were in a romantic and committed relationship for approximately fourteen years. They held themselves out as a couple to family and friends. They desired to co-parent a child together and, in August 2006, Jennifer found out that two friends were expecting a child and wanted to place the child for adoption. Jennifer and Jennie took the biological mother into their home, providing shelter, food, financial and emotional support and pre-natal care.

After the birth of the child in 2007, Jennie selected the name “Hayden,” to which Jennifer agreed. Hayden lived with both parties as a family until he was 4 1/2 years old. He called Jennifer “Mama” and Jennie “Maje,” which stood for “Mama Jennie.” Jennifer adopted Hayden. His last name is Jennie’s and Jennifer’s, hyphenated. Jennie was not included in the adoption process. Jennifer is Hayden’s sole legal parent. During the time the parties lived together with Hayden, they shared caretaking and financial responsibility for him.

Jennifer moved out of the residence in June or July of 2011, taking Hayden with her. Jennifer refused to allow Jennie to interact with the child. In early August 2011, Jennie filed a petition seeking an award of either primary residential placement or liberal visitation.

After a hearing, the trial court determined that Hayden had a bonded, parent/child relationship with both parties. The trial court found that it was “in the best interests of Hayden to protect the bonded, loving relationship that he has with [both parties].” However, as a matter of law the court went on to find that Jennifer had superior parental rights and that the Court of Appeals had rejected the argument that an unmarried person in a close intimate relationship with a child’s natural parent can be a “parent.” Consequently, the trial court denied Jennie’s petition.

Jennie appealed and was allowed to have visitation pending the appeal.

On Appeal: The Court of Appeals affirmed the trial court.

Tennessee law defines a “parent” to mean a biological, legal, adoptive parent, or, in some situations, stepparents. Under current Tennessee law, same-sex partners cannot legally marry in Tennessee.

In an analogous case, In re Thompson, 11 S.W.3d 913 (Tenn. Ct. App, 1999), the Court of Appeals previously considered the plight of a woman who, in the context of a long-term relationship, planned for, participated in the conception and birth of, provided financial assistance for, and until foreclosed from doing so by the biological mother, acted as a parent to the child ultimately borne by her partner. In that case, the Court held that the woman who lacked biological or legal relation to the child lacked standing to seek visitation.

Given the present state of Tennessee law, the Court was forced to conclude as follows:

The legislature, however, has not chosen to address the situation presented in this case, where the parties have never been married and the individual who is not biologically related to the child and has not adopted the child seeks visitation. We do not consider this an oversight, but rather a reflection of legislative satisfaction with the way the law has stood since Thompson….

The legislature has not changed the definition of “parent,” or “legal parent,” nor has it altered the ability of a person in Jennie’s situation to seek visitation since Thompson was decided.

A parent has a fundamental right to the care, custody, and control of his or her child. Jennifer is the adoptive, legal parent and, as such, has control over the individuals with whom Hayden spends time.

We find that Jennie, as the former non-married partner of Jennifer, has no biological or legal relationship with Hayden and, therefore, does not have standing to seek visitation.

The trial court was affirmed. Presumably, the visitation Jennie and Hayden enjoyed while the appeal was pending has now ceased.

In re Hayden C. G-J. (Tennessee Court of Appeals, Middle Section, November 12, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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