UPDATE ON SAME SEX MARRIAGE AND CHILD CUSTODY

UPDATE ON SAME SEX MARRIAGE AND CHILD CUSTODY

As you may be aware, once the United States Supreme Court legalized marriage for same sex couples in 2015, same sex couples are able to marry and in general terms receive the same protection as heterosexual couples under Arizona's domestic relations laws.

Interpretation and application of Arizona law with respect to child custody issues with respect to same sex couples and marriages is still a work in progress, especially as the vast majority of state statutes concerning this issue have not been updated to match a “gender neutral” marital status and still reference parties and parents in terms of a male father and female mother. Several recent decisions now shed some light on how such child custody disputes will now be handled by Arizona courts.

On October 11, 2016, Division Two of the Arizona Court of Appeals issued a decision in McLaughin v. Jones, 240 Ariz. 560 (App. 2016) which held that the marital presumption for a father’s paternity was also applicable in the context of a same sex marriage for a female spouse that was not the biological parent of the child. Under A.R.S. § 25-814(A) which sets forth the marital presumption of paternity, a man is presumed to be the father of the child if he and the mother of the child were married at any time in the ten months immediately preceding the birth of the child. The McLaughlin case involved a married lesbian couple in which one of the spouse’s had conceived and carried a child by artificial insemination during the marriage. The Court determined that, pursuant to the U.S. Supreme Court’s decision legalizing same sex marriage and the fundamental constitutional rights underlying the same, due process and equal protection rights as well as the public policy behind the marital presumption that it should be applied to same sex spouses in the same manner despite the use of male specific terms in the statute itself. Therefore, the marital presumption of paternity applies equally to the non-child bearing spouse of a married same sex couple as it would to the male in a heterosexual relationship. This decision goes a long way in finally giving married same sex couples much of the same rights and presumptions in the child custody realm as heterosexual married couples with children.

On the other hand, there are still pitfalls out there for same sex couples in child custody disputes, especially when dealing with adopted, rather than biological children. Division One of the Arizona Court of Appeals delineated that difference in a decision issued just a couple months later on December 29, 2016 – Doty-Perez v. Doty-Perez, 2016 WL 7477722 (App. 2016). In that case, a married lesbian couple were divorcing and had adopted four (4) children during the marriage. Because Arizona law at the time of the adoptions prohibited adoption by same sex couples, only one spouse had been able to legally adopt the children. The Court in that case refused to recognize any sort of “de-facto parentage” based on the parties’ intent, but held that there was no applicable statutory marital presumption of parentage for adopted children (either in a heterosexual or same sex context) as opposed to biological children conceived during the marriage and that to gain legal parental rights the non-adopting spouse needed to formally go through the legal steps necessary to adopt the children. In this case, despite presumably having the opportunity to do so after the opinions issued making Arizona’s prohibitions against same sex marriage and adoption unconstitutional and void, the non-adopting spouse failed to take steps to formally adopt the children and as such was not a legal parent to these children and had no legal rights to custody or parenting time with the children.

This case is extremely important as a practical matter as many more same sex couples, especially men, adopt children than have them conceived through artificial insemination or surrogates, and until recently, were legally prohibited from joint adoption in Arizona. So, many same sex couples in Arizona may potentially be facing this issue now or in the foreseeable future. Based on this decision, the non-adopting spouse needs to start the process of legal adoption of any such children to ensure that they establish their status and rights as a legal parent to avoid a potentially heartbreaking result in a subsequent divorce proceeding by being told they have no legal rights to or say in the care and custody of children that they helped raise and have a parent/child relationship with.

If you or a loved one are dealing with and trying to navigate this “new world” of same sex marriage and parenting and need advice, please call OWENS & PERKINS at480.994.8824 to schedule your free 30 minute consultation with one of our experienced attorneys.

Categories: Same-Sex Marriage, Blog

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