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Phoenix AZ Family Law Blog

Monday, October 16, 2017

Arizona Ruling Rocks Same-Sex Parental Rights

Q: Should paternity rights in Arizona be gender-neutral?

The Arizona Supreme Court, in a landmark decision, has ruled in the McLaughlin case, that paternity rights in Arizona would be interpreted as gender-neutral. 

The impact of this ruling is a legal victory in same-sex Arizona legal decision-making and parenting time cases for non-biological intended parents. 

In an effort to make Arizona’s state laws compliant with the presumed intent of the United States Supreme Court ruling in Obergefell v. Hodges – –the historic 2015 decision legalizing same- sex marriage--the Arizona Supreme Court recently ruled that "the wife of the gay woman who is giving birth is entitled to the same parental rights as if she had had been a man."

This recent McLaughlin decision addressed existing Arizona paternity laws which contain expressly “male” language and establish paternity/fatherhood through biology and length of marriage. This leaves same-sex female spouses—discriminated upon solely because of their sex--without recourse to establish parental rights. 

Basically, the Arizona Supreme Court interpreted the landmark decision affording same-sex couples the right to marry as also intending to confer other rights on same-sex married couples--beyond simply the right to a marriage license. 

The Court also encouraged Arizona legislators to do their part to amend and update other existing state laws to reflect the “realities of gay marriage”, including "taxation, property rights and hospital access…and adoption rights" rather than continuing the time-consuming process of the courts having to review these laws on a "piecemeal basis as those denied equal rights file suit. "

The details of the McLaughlin case were previously discussed on this blog, but in sum, involved a married lesbian couple and their joint parental parenting agreement in which one partner conceived through artificial insemination intending the other partner to have full parental rights. But when the boy who had been raised by his non-biological, stay-at-home mother was about two-years old, his working biological mother reportedly left with the boy, cutting off the other parent from the child and causing her to file for divorce and seek parenting time.

The case ruled that "same-sex couples are entitled to civil marriage ‘on the same terms and conditions’ as opposite-sex couples"". Although the decision is a blow to people opposed to gay marriage, sources indicate that the sweeping anti-discriminatory legislative changes called for by the court in the McLaughlin case, are not likely to happen or to happen quickly. But for the non-biological parent in that particular case, she is the presumed parent as the divorce case continues. 

Whether you are in a same-sex or heterosexual marriage, if you are considering a divorce and are concerned about your legal decision-making and parenting time rights, Cohen Family Law can help. Contact us for a free consultation.  From our office in Phoenix, we've been helping Arizona families in transition since 1982.>


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