Can a homosexual parent in a same-sex relationship get custody of their children in Tennessee?

Yes, while sometimes difficult, a parent involved in a same-sex relationship can and often is awarded custody of his or her children by Tennessee courts. There exists no legal restriction, as well there shouldn’t, which would bar a parent involved in a homosexual relationship from being deemed the primary residential parent of his or her children. It appears that mothers involved in a same-sex or lesbian relationship, get custody, more often than their male counterparts. This is probably not because of some bias against homosexual men, but derives from the fact that mothers receive primary residential status more often than do fathers. Whether stemming from a Divorce or even if the biological parents were never married, if the court feels that it is in the children’s best interests to do so, the court must declare a same-sex or homosexual parent as the Primary Residential Parent. (We formerly referred to the Primary Residential Parent as the custodial parent this changed in 2003.)

It may seem that a parent’s homosexual orientation is the pink elephant in the room so to speak when litigating child custody, because you may find it is not even mentioned directly; only through innuendo and in indirect reference to inappropriate lifestyle choices. While their parents sexual orientation may not be directly relevant to a child custody case, other factors may apply which indirectly stem from the parents relationship same-sex or otherwise. Multiple partners exposed to the children, same-sex or not, may impact your likelihood for success in a child custody matter. Also, the manner in which a new relationship is introduced to the minor children and the appropriateness of the timing with respect to ongoing litigation or your separation from the other parent could also impact your likelihood of success in gaining custody of the child. As is always the case when custody is considered, drug or alcohol abuse, domestic violence, an unstable lifestyle, an unsuitable living environment or a poor choice of friends, family or acquaintances to whom the children are exposed will negatively impact your ability to win custody of your children.

More times than not, the parent who served in the role as primary caregiver to the child or children during the marriage or throughout the child or children’s life; whether, while involved in a relationship of the other parent, or not ,will be the parent selected by the court as the Primary Residential Parent when determining a Child Custody and Visitation matter, despite either parent’s sexual orientation. The children’s schedules, the work schedule of the parents, the parents’ residences with respect to the children’s present school district, the likelihood of either parent to enforce or adhere to the court order and the strength of the relationship between each parent and the children will help the court determine which parent, regardless of their sexual orientation, should serve as the primary residential parent.

Presently under Tennessee law, Same-Sex Marriage a.k.a. Gay Marriage is not recognized in this state. Despite this homosexual couples are allowed to adopt children in the State of Tennessee. Some courts in Tennessee still require a Paramour clause be included in a Permanent Parenting Plan. This requires that neither party have a romantic partner, to whom they are not married, reside in their residence or spend the night while exercising their respective parenting time. This does create an unfair bias against a homosexual parent involved in a same-sex relationship. Most jurisdictions and most judges do not require this type of language in a Permanent Parenting Plan.

If you are a parent involved in a same-sex relationship and are seeking to gain or to keep custody of your child or children it is important that you hire an attorney who is familiar with the judges in your jurisdiction. Having practiced extensively in Franklin, Williamson County Tennessee, Columbia Maury County Tennessee, Nashville Davidson County Tennessee and most of the surrounding area, I would be happy to discuss your situation with you in detail. For your free initial consultation please contact me, John M. Milazo at (615) 599-7719. Thank you for reading my blog and I appreciate your interest in my firm.

By John Milazo