Same-Sex Partners – Child Custody Land Mines

The recent decision of Compher v. Whitfield from the Tennessee Court of Appeals is a prime example of how far child custody law in Tennessee has to go to catch up with today’s same-sex partner realities. In Compher, two women were in a same-sex domestic partnership. In approximately 2009/2010, the parties decided to have a child together. The parties determined that Ms. Whitfield would carry the child, and they would use anonymous, donated sperm to conceive the child. The parties agreed they would be equal parents, regardless of their different biological connections to the child.

After the child was born, the parties co-parented equally, and both held out “Emory” as their child. Subsequently, however, the parties separated, and litigation ensued.

In 2020, Ms. Compher filed a Petition to Establish Parentage of and for Emory. Ms. Compher sought to be recognized as the legal parent of Emory based on Tennessee law. Alternatively, she sought to be recognized as the de facto parent of Emory, since the child was conceived through assisted reproduction and raised by the parties in a committed relationship, where the parties shared equally in parenting and held the child out as the child of both of them.

Ms. Compher sought to use Tennessee law regarding parents who use certain types of fertilization to conceive to support her parental rights. Ms. Compher, in the alternative, sought to use the Tennessee statute, which gives parenting rights to a “Father” as to a child when the parties, who were not married, separate.

Ms. Whitfield took the position that, since Ms. Compher had no biological connection to Emory, she had no parenting rights to Emory. Ms. Whitfield, therefore, sought to dismiss Ms. Compher’s lawsuit in its entirety and have sole custody of Emory.

Tennessee law allows the non-biological/birthing parent – traditionally the father – to have certain rights to a couple’s child when the child is conceived from another’s sperm via certain types of fertilization. The law, however, uses outdated parental language, such as identifying the non-birthing spouse as “Father.”

The Court rejected the argument that analogized “Father’s” rights to parenting a child when the non-married couple separates. The Court specifically held that under Tennessee law, the “presumption of parentage statute is only a procedure by which the father is able to establish parentage.  . . .” Since Ms. Compher was not the “Father,” the Court held the statute that allows the non-birthing spouse rights to their child gave no rights to Ms. Compher. Accordingly, this statute did not provide Ms. Compher legal standing to pursue a claim.

As a backup argument, Ms. Compher took the position that she was a de facto parent. Ms. Compher contended that even if the Court found the presumption of parenting statute did not apply to her, she “should still be declared to be a legal parent, or de facto parent based on Tennessee common law, and basic equitable principles.”

The Court overruled this argument in its entirety. The Court stated, “we again decline to adopt the concept of de facto parentage and conclude that Ms. Compher did not have standing to pursue this action under this concept.”

Ms. Compher tried a third angle. She utilized the in vitro fertilization statute and made a constitutional argument that it used impermissible distinctions based on sex/gender and the type of assisted reproduction utilized to create a child. Ms. Compher reasoned there is “no functional difference between a child conceived by embryo transfer and a child conceived by artificial insemination.” In essence, she stated this is a distinction without a difference, when it comes to parentage, and she should be considered Emory’s parent under the law, with the concomitant parenting rights.

The Court also rejected this argument in its entirety. The Court found that Ms. Compher was not a biological parent to Emory and that the in vitro fertilization law only applies and is founded upon contract principles to married individuals, which did not apply to her case. The Court concluded, “the artificial insemination statute is grounded upon marriage. . . .”  Since Ms. Compher and Ms. Whitfield were not married, the Court found it did not apply.

Ms. Compher ended up with no rights to Emory, despite the fact she had been a parent to Emory for almost a decade – and all of Emory’s life. The conclusion of the Court seems to defy common sense and, candidly, legal and parental realities. One can only imagine how devastating the loss of Ms. Compher as a parent is to Emory, along with the crushing devastation losing a child must be to Ms. Compher.

The bottom line takeaway, however, is that as things stand right now in Tennessee, same-sex couples in a domestic partnership relationship should strongly consider marriage before pursuing any type of child-producing fertilization procedure for one of the parents. Being a domestic partner, agreeing to parent a child together, and even raising a child as that child’s parent from the moment of birth forward, may not be enough. Failure to understand this important distinction between those who are married and those who are in a domestic partnership in Tennessee may result in a parent without a biological relationship to a child born of a domestic partnership having no rights whatsoever to that child if the parties separate, even if he/she has been a parent to that child for the child’s entire life. It appears, additionally, unsafe in Tennessee to assume a same-sex couple parent without a biological relationship to the child has any rights to their child at all, under certain circumstances.

The opinion leaves unanswered the question of how to establish a parental relationship with a child by a non-biologic parent in a domestic relationship arising out of a same-sex partnership that is not marriage. One wonders if the law would accept a contractual agreement between the two parties which confirms parental status to the non-biologic parent. The Tennessee appellate courts have left us to guess. It is possible either the Tennessee Supreme Court or the Tennessee legislature will step in and remedy this problem, which, as things stand now, can have such devastating results.

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About the Author:

Stuart Scott is a litigation attorney with over 25 years of experience. He has tried hundreds of cases in both state and federal court. Some of his noteworthy victories have been featured in local, state and national publications. Stuart is also listed as a Tennessee Supreme Court Rule 31 Family Law Mediator. Stuart focuses his primary area of practice on family law. He represents people going through divorce and focuses his efforts on providing his legal services and advice to his clients in this area. Mr. Scott may be reached in our Nashville office at 615-620-1710 or