September 19, 2017 marks a major victory for same-sex parents in the state
Despite the U.S. Supreme Court recognizing and extending state marital
benefits to same-sex couples nationwide in 2015, many states are slow
to adapt to this change in the law.
Arizona is no exception as our statutes are written with “traditional”
family roles in mind – a husband and wife, a father and mother.
The traditional language written into our statutes makes it difficult to
determine how the laws apply to same sex couples when facing divorce or
Yesterday, however, Arizona’s Supreme Court made clear that despite
statutes’ outdated language, same-sex couples can start realizing
the same benefits opposite-sex couples enjoy in the state of Arizona.
McLaughlin v. Jones, the main issue before the court was whether the marital paternity presumption
in §25-814(A)(1) is to be applied to same-sex couples.
The statute provides that a man is presumed to be a legal parent if his
wife gives birth to a child during marriage. This same presumption exists
in cases of artificial insemination, allowing a husband in an opposite-sex
marriage to establish his parental rights where his wife is artificially
inseminated by an anonymous donor.
McLaughlin case, Kimberly and Suzan, a same-sex couple, decided to have a child through
artificial insemination. After a failed first attempt, Kimberly became
pregnant using an anonymous sperm donor. Kimberly and Suzan entered a
joint parenting agreement declaring Suzan a “co-parent” of
the child with the same rights, responsibilities and obligations that
a biological parent would have to her child. About two years later, the
relationship deteriorated and Suzan’s contact with the baby was cut off.
The court held that even though the statute, as written, does not apply
to same-sex couples, excluding Suzan from the marital paternity presumption
violates the Fourteenth Amendment. The court, looking back to Supreme
Court cases interpreting newfound rights for same-sex couples, determined
that the paternity presumption is to be extended to same-sex couples to
ensure that all children have financial and emotional support from two
parents and strong family units.
This is a major victory for Arizona’s LGBT community and will open
the door for many other changes in the law that will meet the federal
recognition of same-sex marriage. This comes even as many states still
struggle to integrate laws to fit any necessary matters where same-sex
couples are involved.
To read the court’s full opinion,
Arizona is finally changing, if you are seeking to establish and/or enforce
your own parental rights and you would like to work with one of our experienced
Attorneys, please call
OWENS & PERKINS at480.994.8824 to schedule your free 30 minute consultation.