Lawmakers want to have a say in same-sex custody case

Knoxville same-sex couple fights for custody

Dozens of Tennessee lawmakers believe they should have a say in the pending divorce of two Knoxville women, because any ruling could affect their authority to change state law when it comes to same-sex marriage.

The Family Action Council of Tennessee filed a motion on behalf of the fifty-three Republican legislators in the case of Sabrina Renae Witt v. Erica Christine Witt.

In April 2014, Erica Witt married Sabrina Witt in Washington D.C., which recognized same-sex marriages at the time. Tennessee law still does not recognize same-sex marriages, but they were validated by a 5-4 U.S. Supreme Court ruling in Obergefell v. Hodges on June 26, 2015.

The motion filed in the Fourth Circuit Court for Knox County by David E. Fowler, who serves as an attorney for the legislators, contends the legislators, “unique and substantial interest in the legislative power and process will be impeded, impaired, and and/or nullified” if courts interpret state law to “to apply to any persons other than a man and woman joined together as ‘husband’ and ‘wife.’”

Sabrina is the biological mother of the child, becoming pregnant through artificial insemination with an anonymous sperm donor. The child was born in January 2015.

Erica never formally adopted the baby, and her attorney, Virginia Schwaam, said Erica didn’t think she needed to.

A judge ruled Erica was only a stepmother in the eyes of Tennessee state law during the couple’s divorce proceedings in June, barring Erica from making decisions about the child's life, including medical and school-related decisions.

Schwamm had asked the judge to apply the state's existing child custody laws, and apply "spouse and spouse" where the language specified "mother and father" or "husband and wife."

The state lawmakers don’t believe that legal designation should be made by a judge.

“Does the U.S. Supreme Court’s Obergefell decision authorize judges to determine for state legislative bodies what policies it must have relative to custody issues in divorce proceedings?” Fowler said. “If it does, then matters of family law, which have historically been within the constitutional powers of the states to determine, will have essentially been judicially taken from the states and placed in the hands of federal judges.”

Related: Sunday marks one year since same-sex marriage ruling

The judge granted Schwamm's motion to take this case to the Tennessee Court of Appeals.

"He didn't think he could extend the law the way we were asking him to, and so he stuck with a very narrow ruling," Schwamm said.


(© 2016 WBIR)


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