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Tennessee Court Upholds Parenting Rights of Unmarried Same Sex Partners

Earlier this year, a Tennessee trial court said that a state law called a paramour clause disallowed a divorced woman with children from having her same sex partner of 10+ years sleep at her house when the children were home as well.

The paramour clause won't let a divorced person have children from the prior marriage at their house when an unmarried partner is sleeping there. Since gay couples can't get married in Tennessee, the divorced woman would have never been allowed to have her same sex partner sleep in the same house as her children.

But just two weeks ago, the Tennessee Court of Appeals reversed the trial court [PDF], saying that parenting rights should ultimately be based on what's best for the children:

While a rule such as [the paramour clause] can be instructive, it is subordinate to Tennessee public policy mandating that trial judges make decisions regarding residential parenting of children upon the basis of the best interest of the child.

The court did not say that the paramour clause itself was bad for children, but that it should only be enforced when its best for children. So, it's still possible that a trial court will later say that the divorced woman's children are best off if the paramour clause stays in place.

Certainly, the ruling is good for gay couples in Tennessee. But it should also remind people that changing discriminatory laws against same sex couples is usually a slow, repetitive process: the Maryland Court of Appeals made the same decision in a similar case back in 1998.

It took eleven years for Tennessee, a more conservative state, to get to the same point. Because changes in gay rights usually happen at the state level, it will typically take this long (or longer) for progressive changes to make their way across the country.

[Cross-posted at the Gay Couples Law Blog, which discusses same sex family law, estate planning, and taxes.

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Gideon Alper

Gideon Alper