Moving Forward with Same-sex Parental Rights

The Arizona Supreme Court Affirms the Equal Rights of Same-Sex parents with its ruling on Tuesday, September 19, 2017 in McLaughlin v. Jones in and for County of Pima.

The Court’s ruling will require Arizona to extend the same laws regarding opposite-sex couples to that of same-sex couples per the U.S. Supreme Court’s 2015 landmark ruling in Obergefell v. Hodges.  In Obergefell, the Supreme Court held that the right to marry is a fundamental right protected by the U.S. Constitution and as such, same-sex couples may not be deprived of that right and liberty.

However, many questions remained because the Court’s ruling left many statutory provisions outdated.  For example, the applicable statute in McLaughlin was A.R.S. § 25-814.  This statute deals with a presumption of paternity when a child was born out of wedlock but the presumptions are based on the biological difference between men and women. Thus, only a male can be a presumed biological father.  This begs the question of where does this leave same-sex couples who have children?

McLaughlin involved two women who were married, Kimberly and Suzan.  Kimberly underwent a procedure to become pregnant by artificial insemination.  After becoming pregnant, the couple moved to Arizona.  Before the child was born, Kimberly and Suzan entered into a joint parenting agreement declaring Suzan to be a “co-parent” of the child and more specifically stated in the agreement that Kimberly intends for Suzan to be a second parent to Suzan’s child.  However, the agreement also stated that should the relationship end, then it’s the parties’ intention that they continue to share joint custody, regular visitation, and child support in accordance with Arizona law.  Two years later, Suzan filed for dissolution of marriage and for legal decision-making and parenting time.  Kimberly opposed Suzan’s positions on the grounds that she cannot establish parental rights under Arizona law because the statute only provides for a biological presumption, i.e., paternity may only be established by a male.

The question presented in McLaughlin was: Whether a woman who is in a same-sex marriage can establish parental rights to a child just as a male father can under § 25-814 after the Supreme Court in Obergefell explained that same-sex couples are afforded the same rights and privileges under the Constitution as those provided to opposite-sex couples?

The Arizona Supreme Court ultimately found that § 25-814 does apply to same-sex spouses.  In doing so, the Court explained the importance of “ensur[ing] all children, and not just children born to opposite-sex spouses, have financial and emotional support from two parents and strong family units.” This is significant because before these cases, Courts did not interpret statutes such as § 25-814 to apply all couples alike, which left same-sex couples deprived of the many rights and privileges that were awarded to opposite-sex couples.

If you feel that you are in a situation where opposite-sex couples are afforded rights that you are not, give us a call and we can discuss your legal rights.

Best Regards,

Michael J. Dinn Jr.

*This is intended for educational purposes only.  This is not intended to serve as legal advice.