Court Divided on Standing of Same-Sex Couples to Seek Visitation in Tennessee: Pippin v. Pippin

May 20, 2020 K.O. Herston 1 Comments

Facts: Sandra and Christina were a same-sex couple.

In 2011, they mutually decided to have a child, and for Christina to carry the baby. They jointly purchased semen from a sperm bank, Christina was artificially inseminated, and later gave birth to Child.

When she was pregnant with Child, Christina legally changed her last name to that of Sandra’s. They never married because, at that time, Tennessee prohibited same-sex marriages.

Instead, they executed a sworn “Domestic Partner Affidavit” to verify that they were a family supporting each other and Child, which allowed Christina and Child to be added to Sandra’s health insurance.

Sandra and Christina intended for Child to be raised equally by both.

Sandra was listed as Child’s other parent on all doctor, school, and extracurricular activities forms.

Child, age 6, grew up calling the parties “Momma Sandy” and “Momma Christy.” Child knew Sandra’s extended family as his family, calling them “Grandma,” “aunt,” and his cousins.

Sandra and Christina shared household responsibilities as a family, with Christina as a stay-at-home mother with responsibility for most of the household chores, and Sandra as the primary breadwinner for the family and paying most family expenses.

Sandra and Christina separated for ten months in 2014, but still co-parented Child.

They permanently separated in late 2016 but agreed to a coparenting plan.

After a failed attempt at reconciliation in August 2017, Christina reneged on the agreed coparenting schedule and began a new romantic relationship with someone else.

Tennessee same-sex couples

Several months later, Sandra petitioned to establish “de facto parentage” and for a court-ordered parenting schedule.

The trial court ordered a temporary parenting schedule. The following day, Christina moved to dismiss the petition, alleging that Sandra lacked standing to seek parenting time because the parties were never married, and Child is Christina’s biological child who was never adopted.

The trial court reluctantly granted the motion to dismiss, observing that, “There is no question in my mind that it would be in this child’s best interest to continue in the only family that he’s ever had.” The trial court stayed enforcement of that ruling to permit Sandra’s parenting time to continue pending her appeal.

Sandra appealed.

On Appeal: In a 2-1 decision, a divided Court affirmed the trial court.

Standing is a judicial doctrine used to determine whether a party can have a court decide the merits of a dispute. Where a party seeks to base his or her standing on a statute, he or she must show that their claim falls within the zone of interests protected or regulated by the statute.

Tennessee Code Annotated § 68-3-306, when read in context, says that a child born to a married woman by artificial insemination is also a child of the woman’s husband, allowing the name of the husband to be entered as the child’s father on the birth certificate.

The Majority found this statute did not grant standing to Sandra:

Inasmuch as Sandra’s petition stated that she and Christina were not married at the time of Child’s birth nor at any time afterward, section 68-3-306 does not provide Sandra with standing and thus cannot be used to support a claim for visitation with Child.

Tennessee Code Annotated § 36-2-304(a)(4) says that a man is rebuttably presumed to be the father of a child if “the man receives the child into the man’s home and openly holds the child out as the man’s natural child.”

Tennessee Code Annotated § 1-3-104(b) says, “Words importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest.”

Sandra argued this requires § 36-2-304(a)(4) to be read in a gender-neutral way so it creates a rebuttable presumption of parentage when a person like her receives a child into her home and openly holds the child out as her child.

The Majority was unpersuaded:

[T]o substitute “comparable feminine terms” for the words like “man” or “father,” as Sandra proposes, goes beyond allowing words written in one gender [to] be construed, where necessary, to apply to the other, and exceed[s] the purpose of the parentage statute . . . . No rights or relationships are created by the parentage statutes, only a procedure by which the father is able to establish parentage; as such, recourse to section 1-3-104(b) for other purposes is not warranted. . . .

[The Tennessee Code] defines “parent” to mean “the biological mother or biological father of a child, regardless of the marital status of the father and mother”; it also defines “mother” as the biological mother of a child born out of wedlock”, and “father” as “the biological father of a child born out of wedlock.” . . . Inasmuch as the Legislature has defined “father” [], we cannot give a gender-neutral meaning to that term . . .; To do so would extend both statutes’ meanings . . . . [T]he statutes governing parentage contemplate a biological or genetic connection between the child and the putative parent. Sandra does not have a biological connection to Child and, accordingly, cannot fit this definition.

The Legislature has expressly created rights relative to child custody and visitation for biological parents, potential adoptive parents, grandparents, stepparents, and parents of “children born of donated embryo transfer.” It has not created the same such rights outside of these relationships. As Sandra does not fit into any of these categories, her claim falls outside the zone of interests protected or regulated by the statutes she references, rendering her without standing to pursue a parentage action or visitation with Child.

The trial court’s judgment dismissing Sandra’s petition was affirmed, and the order granting visitation between Sandra and Child was vacated.

Dissent: Judge Bennett began his dissent with this memorable, concise, and compelling sentence: “This opinion is stuck in the past.”

He argues that the U.S. Supreme Court’s ruling that same-sex couples are entitled to the same constitutional rights as opposite-sex couples changes the way Tennessee courts must interpret many statutes relating to marriage and parentage.

He notes that since the Supreme Court’s ruling, even though “Tennessee has not chosen to revamp its marriage and parenting laws,” placing “Tennessee in uncharted legal territory,” Tennessee’s courts may not ignore the ruling “and its implications.”

The Majority maintains that section 68-3-306 merely deals with birth certificates and nothing more. This attitude ignores the significance of appearing as a parent on a birth certificate. [As recognized by the U.S. Supreme Court], appearing on a birth certificate is “more than a mere marker of biological relationships.” In fact, it is a vehicle for exercising many parental rights. A birth certificate is a document often used for important transactions like making medical decisions for a child or enrolling the child in school. . . . [B]irth certificates confer or support many parental rights.

In light of [U.S. Supreme Court rulings], we must interpret section 68-3-306 as constitutional. . . . In Witt v. Witt, this Court noted that “[t]he Attorney General asserted that the statute could be read constitutionally, however, by employing section 1-3-104 . . . .” This interpretation is constitutionally required. Thus, the word “husband” in section 68-3-306 must be interpreted to include both the male and female genders.

The Majority’s last objection to section 68-3-306 providing standing is that there was no marriage. This is true. Obergefell was not decided until the relationship between Sandra and Christina was ending. So we must be mindful of the fact that Tennessee would not let them marry. Sandra proposed to Christina. Sandra gave Christina a ring. They executed a Domestic Partnership Affidavit. They held themselves out as a family. And, perhaps most importantly for this case, they created the child together. There is no difference between Sandra and the “husband” in section 68-3-306 except for a marriage that the State of Tennessee would not allow. We know from Obergefell that the same-sex marriage prohibition violated Sandra’s due process and equal protection rights. Fundamental notions of fairness and justice cannot allow a constitutional violation of her rights to be the impediment to [her] standing under the facts of this case.

[Regarding section 36-2-304(a)(4),] the application of this statute boils down to Sandra is a woman, not a man and so, according to the Majority, the statute does not apply because of the statute’s definitions. The application of this statute is so clear to Sandra’s situation that one can see the discrimination. [U]nder the facts of this case[,] Sandra [] has standing under section 36-2-304(a)(4) when it is read in a constitutionally neutral way.

* * * * *

The trial court granted Sandra visitation during the proceedings and pending the appeal. That speaks volumes. . . .

In a judicial system where right and justice are paramount, there is no way that Sandra [] should be denied her parental rights to Child. Therefore, I respectfully dissent.

K.O.’s Comment: Nearly five years ago when the U.S. Supreme Court recognized the constitutional rights of same-sex couples, I wrote:

Tennessee lawyers should expect to see substantive changes in Tennessee family law, particularly in the areas of adoption and parental rights. Terrible cases like In re Hayden C. G-J. will thankfully be no more. In addition to the full panoply of parental rights, married same-sex couples will now be entitled to financial benefits such as Social Security survivor and disability benefits, joint tax returns, spousal health insurance rights, estate planning rights — the list goes on and on.

It is an exciting time to be a family-law attorney in Tennessee.

How naive of me!

Five years later, the Legislature has accomplished nothing beyond sophomoric stunts intended to impress its most bigoted and extreme political supporters.

The Legislature’s failure to update Tennessee law after the U.S. Supreme Court ruled that same-sex couples are entitled to the same constitutional rights enjoyed by opposite-sex couples is an abdication of their responsibility to Tennessee’s children. They’ve known about our outdated laws for five years but did nothing. Their inaction in the face of this knowledge brings shame and dishonor to themselves and this State.

The Tennessee Bar Association must form a task force to create a legislative package that brings Tennessee’s discriminatory laws into compliance with the U.S. Constitution. Force our legislators to vote. Don’t allow them to continue hiding through inaction. The child in this case needs both of his parents and will be harmed without them both. Preventing that harm to this child and others like him is everyone’s responsibility.

This is not about same-sex marriage. That ship has sailed. It’s now about protecting children in all families, not just opposite-sex families.

Pippin v. Pippin (Tennessee Court of Appeals, Middle Section, May 14, 2020).

Court Divided on Standing of Same-Sex Couples to Seek Visitation in Tennessee: Pippin v. Pippin was last modified: May 18th, 2020 by K.O. Herston

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