How Adoption Affects Custody Rights in Same-Sex Divorces?

Everyone, regardless of gender and sexual orientation, has the right to be a parent. Those in same-sex marriages have the same parental rights as those who are in heterosexual marriages. But there may be some questions, concerns, and confusion when these couples divorce. Our adoption lawyer can explain how parental rights work and guide you through custody issues in same-sex divorces.

Adoption plays a significant role in determining parental rights during a same-sex divorce. In Tennessee, a person who has become a legal parent through adoption, biology, or court order has full custody rights equal to any other parent. If both spouses legally adopted the child (whether through joint adoption or second-parent adoption), each has the same standing in custody, parenting time, and decision-making. Both parents are listed on the child’s birth certificate after the non-genetic parent has legal parentage established by adoption.

Tennessee does not automatically grant parental rights based solely on marriage or intent to parent. Without a legal adoption, the non-adoptive parent may face challenges asserting custody or visitation, even if they raised the child.

Here are the key complications that often arise in same-sex divorces involving adopted children in Tennessee.

Only One Parent Completed a Legal Adoption

This is the most common and most serious complication. Tennessee treats legal parentage as the foundation of custody rights. If only one spouse legally adopted the child, the non-adoptive spouse is not automatically recognized as a parent, even if they acted as a parent since birth. Without adoption, the non-legal parent may have no automatic right to custody or visitation.

In such cases, courts sometimes grant limited rights under “in loco parentis,” but these do not carry the same weight as full parental rights and can be revoked. The adoptive parent may have near-complete control over the child’s future unless the other parent petitions for parentage or adoption during the marriage.

Old Adoption Restrictions

Before 2015, Tennessee did not recognize same-sex marriages. Some courts refused to approve adoptions or required complex workarounds, such as guardianships.

When couples who parented children before 2015 divorce today, one parent may lack legally established parentage, and the court may struggle to determine whether earlier intentions or parenting roles can legally “count.” This means older same-sex couples are more likely to face parentage disputes because one partner’s parental status was never formally recognized.

Children Born Through Donor Conception or Surrogacy

Tennessee does not automatically recognize the non-biological, non-gestational same-sex spouse as a parent unless the spouse is listed on the birth certificate and a step-parent or second-parent adoption is completed.

Complications include:

• Birth certificates are not conclusive proof of parentage.
• The biological parent may claim exclusive rights during divorce.
• The non-biological parent must show intent, involvement, or attempt to adopt.

Failure to complete a second-parent adoption exposes the non-biological parent to loss of custody.

Experienced Custody Attorneys Can Help

Child custody can be complicated in same-sex marriages because only one parent can be the biological parent. Parental rights are not automatically granted, so an adoption needs to take place.

Same-sex parents in Tennessee can benefit from the legal assistance of a Murfreesboro divorce attorney from David L. Scott. We can help you navigate the state’s laws. To schedule a consultation, contact us via (615) 896-7656 or online here.