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Legally Speaking: Arizona court ruling a win for same-sex parents

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The Arizona Supreme Court ushered in a new right for the LGBTQ community and parents last week in its highly anticipated decision of McLaughlin v. Jones.

It ruled that the non-biological parent of a child in a same-sex marriage does, in fact, have parental rights. This decision is a significant victory not only for the LGBTQ community, but for the children of our state.

Under established and supported Arizona law, a man is presumed to be the legal parent of a child if his wife gives birth during their marriage. According to A.R.S. § 25-814(A)(1), “[a] man is presumed to be the father of the child if … [h]e and the mother of the child were married at any time in the 10 months immediately preceding the birth or the child is born within ten months after the marriage is terminated…”

As with any presumption, this can be rebutted. However, rebutting the presumption was not at issue in McLaughlin v. Jones.

In light of the above law, the question before the Arizona Supreme Court was whether a female same-sex spouse would be entitled to that same presumption given to a man.

In other words, if Kimberly and Suzan were legally married and Kimberly gave birth to a baby that was conceived during the marriage by artificial insemination, would Suzan be presumed to be the parent under Arizona law just like a man would be?

The Court ruled that yes, Suzan is entitled to that presumption and all the benefits and burdens that come with that.

Back in 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that same-sex couples have the fundamental right to marry and that they are constitutionally entitled to the “constellation of benefits the states have linked to marriage.”

Put another way, same-sex spouses are entitled to every right and benefit that a man and woman have or receive due to the simple fact that they are married.

Although the main ruling in Obergefell is known by every state in our great country, not every state, including Arizona, has gone back and updated or changed its laws to reflect the Supreme Court.

Because Arizona law still had the word “man” written in it, Suzan was initially denied her parental rights over the baby because she was not the biological parent.

This denial of parental rights, simply because Suzan was female, was a violation of the 14th Amendment’s equal protection and due process clauses. Additionally, it doesn’t make logical sense to allow same-sex couples to legally marry but then state in the same breath that they are not entitled to all the benefits of that marriage.

How could that possibly be equal? It cannot and it is not.

The Arizona Supreme Court had a choice here. It did not have to extend the presumption under the law to Suzan, it could have simply nullified the law.

However, if it had chosen to nullify the law, it would have had to ignore the purpose of the law in the first place which was to”“ensure children have financial support from two parents; … and to reduce the number of individuals forced to enter the welfare rolls.”

By including Suzan and others similarly situated, the court chose to promote and protect Arizona’s objectives to promote strong family units, provide for children and “ensure a child has meaningful parenting time and participation from both parents.”

A couple things to think about: Kimberly and Suzan chose to enter into a private joint parenting agreement before the birth that declared Suzan a co-parent. The agreement specifically stated that Kimberly “intends for Suzan…to be a second parent to her child, with the same rights, responsibilities, and obligations that a biological parent would have to her child” and that “[s]hould the relationship between [them] end . . . it is the parties [sic] intention that the parenting relationship between Suzan McLaughlin and the child shall continue with shared custody, regular visitation, and child support proportional to custody time and income.”

It is unlikely the court’s decision would have been different without this agreement. However, it likely made the court feel even better about its decision.

Bottom line, the U.S. Supreme Court decided in 2015 that same-sex couples have the fundamental right to marry and that they are entitled to all the benefits that come with that marriage. One of the benefits is that same-sex couples are entitled to all the parental rights and presumptions afforded to opposite-sex marriages.

Had the Legislature been able to fix Arizona’s laws to comply with the court’s decision in Obergefell on its own, perhaps the time and money spent on this case by all involved would have been minimal.

However, it is likely we will continue to see Arizonans have to sue in order to obtain the rights they are entitled to because, from what I have discovered, the Legislature neither has the time nor the inclination to update Arizona’s laws.

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