Originally Published: April 20, 2017 6 a.m.
PHOENIX — The Arizona Supreme Court will decide whether 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.
In a brief order, the justices said they want to review claims that state laws governing who is legally presumed to be the parent of a child apply only when that other person is male, arguments rejected by the state Court of Appeals.
The unusual case has implications beyond the fight over parental rights of a boy born in 2011 in Arizona to two women who were legally married in California.
Since then, the U.S. Supreme Court has issued its historic ruling that same-sex marriages are entitled to the same legal protections as traditional heterosexual unions. And what the state’s high court rules will determine exactly how laws on marriage, divorce and perhaps even adoption, crafted in the days when the only legal marriages were one man and one woman, must be applied now.
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 child was born, the couple moved to Tucson, entered into a joint parenting agreement and executed mirror wills, declaring they were to be equal parents to the child. After the 2011 birth, Suzan stayed home and cared for the boy while Kimberly worked as a physician.
When the boy was nearly two, Kimberly moved out, taking the boy with her and cutting off his contact with Suzan.
Suzan filed for divorce in 2013 as well as sought a court order for parenting time. When a trial judge agreed to have the case proceed, Kimberly appealed.
What makes the case significant is the applicability of Arizona law which 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.
The state Court of Appeals, in a ruling last year, acknowledged the law was written with a father in mind, someone who conceivably could be the biological parent. But the court said that, in the wake of the 2014 U.S. Supreme Court ruling, trial judges now have to read that presumption to apply in any circumstance, regardless of the gender of the other parent -- and regardless of whether that other parent could in any way be biologically related to the child.
“Under (the law), the male spouse of a woman who delivers a child is the presumptive parent, and therefore a ‘legal parent,” wrote appellate Judge Philip Espinosa.
“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 couples, particularly in terms of safeguarding children and families,” Espinosa said.
Keith Berkshire, attorney for Kimberly, said he is not contesting the 2014 Supreme Court ruling.
He said, though, most states have specific laws which make that presumption of parenthood automatic, even in cases of artificial insemination. Arizona, Berkshire said, does not.
And there’s something else.
Arizona law allows a man whose wife has given birth, even within 10 months of the marriage, to produce biological evidence that he is not the parent. More to the point, the biological mother is entitled to prove through DNA testing that her husband is not the father and therefore not entitled to a presumption of parenthood.
Berkshire said that right is being denied to Kimberly.
“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 Kimberly cannot argue now 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.”