Still, contrary to what many people believe, the Obergefell decision did not resolve all the issues facing same-sex couples--especially those with children.
A recent Tennessee decision is a case in point. On Friday, June 24, 2016, a Knox County judge ruled that a same-sex spouse did not have parental rights or obligations to a child born to her spouse during the marriage. That same judge would never issue the same ruling if the couple were heterosexual.
The couple in this case used assisted reproductive technology to have their child. Sabrina and Erica Witt were married in 2014. Tennessee did not recognize their marriage. The couple decided to start a family and Sabrina gave birth to the child in 2015. When Sabrina filed for divorce her lawyer argued that Erica has no parental rights or obligations because Tennessee law uses the terms "husband" and "wife" in the artificial insemination statute.
The case is on appeal but other states have similar cases pending. The other states also fell into the category of nonrecognition states before the Obergefell decision.
What many in the LGBT community fail to understand is our families remain at risk because of animosity directed against us. Many lawyers also fail to understand the pitfalls facing same-sex couples and their families. Litigation is expensive and appealing a bad decision adds to those expenses.
Lesbian and gay male couples who have children or plan to have them need to take specific steps to protect the rights and obligations of both parents. That includes shared parenting agreements and second parent or stepparent adoptions. No couple should rely on the "well, heterosexual couples don't have to do this." That may be true but the LGBT experience is different.
Consider: in few situations will both parents be biologically or genetically related to the child. Couples use assisted reproductive technology, surrogacy and donors (known and unknown) to have a child. When only one intended parent contributes genetic material the other intended parent is an outlier. Some states have a rebuttable marital presumption that recognizes children born during a marriage to be the child of both spouses. That presumption is rebuttable and lacking a genetic or biological connection to the child is a surefire way of rebutting that presumption.
Couples need to consult a lawyer - whether they are married or not - when starting a family. Do not take anything for granted. And, if there is a divorce or separation--think of the impact on the child being denied the love and attention of both parents. Kids do not choose their parents; the adults start the process. It would be nice if the children were put first but that does not happen. The adults fight and the kids pay the price.
The worst part of these custody disputes is that lawyers, like the one representing Sabrina Witt, make anti-gay and anti-family arguments. With marriage equality in place, laws that with gender restrictive language like "husband" and "wife" must be interpreted to mean "spouse." It is a gender-neutral term that will apply to heterosexual and same-sex couples. Unfortunately, we continue to see passive-aggressive behavior from the bench and the bar because of opposition to marriage equality.
Taking steps to validate the rights of the biological and non-biological parent is essential. And, perhaps it won't take a Supreme Court decision to ensure equal rights for all families.