Arizona Parental Rights Case May Impact Same Sex and Heterosexual Divorces

Q: Does the non-biological parent of a child through artificial insemination have parental rights in a same sex marriage and divorce in Arizona?

Establishing paternity in Arizona, once a rather straightforward business, is in the news.

When the U.S. Supreme Court legalized same-sex sex marriage in Obergefell vs. Hodges in 2015, LGBT rights took a giant step forward. But with great rights comes great responsibility and– as is often the case after the U.S. Supreme Court makes a ruling– state court judges throughout the nation must scramble to interpret how existing state laws have or should be impacted by that high court’s ruling.

At issue in Arizona, as well as other states, is the question of “how to balance U.S. Supreme Court ruling’s requiring equal treatment for married gay couples with a state law that doesn’t recognize the parental rights of a lesbian woman who is divorcing her spouse”.

Currently, the paternity law in Arizona with respect to children conceived during marriage through artificial insemination is not gender-neutral, but rather provides that “a child is presumed to be the offspring of a man if he was married to the woman within 10 months of the child’s birth”.

Relying on the letter of that potentially-outdated state law–which many argue clashes with the spirit if not the intent of the high court’s Obergefell ruling–the biological moms in two divorcing lesbian couples have argued in two separate Arizona court battles that their female ex-spouses are not entitled to parental rights because they are not men. In addition, one of the non-biological parents had not yet legally adopted the child of the marriage before the biological mom filed for divorce.

In one case, a lower court agreed with the biological mom, stating that it is up to the state legislature, not the court, to change the wording of the law. But another court ruled in favor of the non-biological parent stating that Obergefell “requires the state to interpret its paternity law as gender-neutral”.  The latter case has been appealed to the Arizona Supreme Court.

The decision will have a significant impact on parental rights in both same-sex and heterosexual divorces where artificial insemination was used.

First, if paternity must be interpreted as gender-neutral, “the non-biological parent in a same-sex marriage would no longer be forced to adopt her child to establish parental rights” which would enable the family court to freely grant the non-biological parent in a same-sex divorce the parental rights of visitation and custody, also known as parenting time and legal decision-making.

However, if the court strikes the existing presumed parentage law entirely, countless non-biological fathers of children conceived through artificial insemination prior to divorce could lose their parental rights.

It will be interesting to see if the courts will merely modify the law and “consider paternity of lesbian couples with a child born through artificial insemination the same as if they were a heterosexual couple” or will wait for the legislature to update Arizona laws to “reflect the realities of gay marriage” – – something they have so far been reluctant to do.

If you are a same-sex or heterosexual couple in need of help with a divorce, adoption, or child custody issue, Cohen Family Law has the experience you need. Devoted exclusively to the practice of family law since 1982, we help clients in Phoenix and throughout Arizona.  Call us today for a free consultation at 602-714-8898.