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6:03 AM Mon, Oct. 15th

Appeals court: Same-sex spouses have parental rights

PHOENIX – The same-sex spouse of a gay woman who has given birth is entitled to the same parental presumptions and rights as if she were a man, the Arizona Court of Appeals ruled Tuesday.

In the first case of its kind in Arizona, the judges rejected the arguments by the biological mother of a child that the Arizona laws determining who is legally presumed the parent of a child only apply when that other person is a male.

Appellate Judge Philip Espinosa said that would undermine the historic 2014 U.S. Supreme Court ruling that same-sex marriages are entitled to the same legal protections as traditional heterosexual unions.

What makes that important is Arizona law spells out that a man is presumed to be the father of a child if he and the mother were married at any time within 10 months immediately preceding the birth. Tuesday’s ruling, unless overturned by the Arizona Supreme Court, means that while the law was written with a father in mind, judges now have to read it to apply in any circumstance, regardless of the gender of the other parent.

The case involves Kimberly McLaughlin and Suzan McLaughlin who were legally married in 2008 in California.

Court records show the couple agreed to have a child through artificial insemination using an anonymous sperm donor. Kimberly became pregnant in 2010.

Before the baby was born, the couple moved to Tucson. When the boy was nearly 2, the couple split and Suzan filed for parenting time. When a trial judge agreed to have the case proceed, Kimberly appealed.

Keith Berkshire, her attorney, does not dispute the agreement with Suzan. But he said Suzan is not a “parent’’ as defined in state law. And he said Kimberly, as the boy’s biological mother, is by definition, the only parent and therefore the only person who has parental rights.

Espinosa, however, said that argument runs directly contrary to the 2014 Supreme Court ruling.

“Under (the law), the male spouse of a woman who delivers a child is the presumptive parent, and therefore, a ‘legal parent,’ ‘’ the judge wrote. “If the female spouse of the birth mother of a child born to a same-sex couple is not afforded the same presumption of parenthood as a husband in a heterosexual marriage, then the same sex couple is effectively deprived of civil marriage on the same terms and conditions as opposite-sex coupled, particularly in terms of safeguarding children and families.’’

Berkshire said he is not contesting the Supreme Court ruling putting same-sex marriages on the same legal footing as opposite-sex relations.

But he said the appellate court is ignoring the fact that most states have a specific law which makes the presumption of parenthood automatic even in cases of artificial insemination. Arizona, Berkshire said, does not.

More to the point, he said existing Arizona law allows a man whose wife has given birth, even within 10 months of the marriage, to produce biological evidence he is not the parent. Ditto, Berkshire said, if the biological mother wanted to prove through DNA testing that her husband was not the father and therefore not entitled to a presumption of parenthood.

“If this were a heterosexual relationship, my client would have been able to rebut (Suzan’s parenthood claim) if she was married to as man,’’ Berkshire said. Denying that right to Kimberly “because she is a lesbian,’’ he said, is a “distortion’’ of the 2014 Supreme Court ruling.

Espinosa, however, said that logic relies improperly on that question of a biological connection. He said the law is clear: Paternity is presumed if the child is born during the marriage or within 10 months thereafter.

“It does not require a biological connection between the father and child,’’ Espinosa wrote. “The mere fact that the child was born during the marriage or shortly thereafter gives rise to the presumption of the husband’s paternity, without regard to whether the husband is the biological parent.’’

The judge said there’s a good reason for that.

“The marital presumption of paternity serves the additional purpose of preserving the family unit, he wrote.

Anyway, Espinosa said, Kimberly cannot argue that Suzan is not a parent when everything she did prior shows otherwise. That includes they were married when they agreed to artificial insemination, that Suzan stayed home to care for their son, and that they entered into an express agreement “and agreed unequivocally that both would be (the boy’s) parents, with equal rights in every respect.’;

And the judge noted that Kimberly specifically “waived any constitutional, federal or state laws that provide her with a greater right to custody and visitation than that enjoyed by Suzan.’’

Finally, Espinosa noted there is no one else who is asserting to be the parent of the boy and expressing a willingness to care for and support him.

“Suzan is the only parent other than Kimberly, and having two parent to love and support (him) is in his best interests,’’ the judge wrote.