Same-Sex Marriage and Child Custody in Arizona
In 2015, the U.S. Supreme Court decided Obergefell v. Hodges, declaring that the Constitution protected the right of same-sex couples to marry. This required Arizona courts to reinterpret family law in Arizona in same sex marriages.
Many aspects of marriage and divorce law had to be altered to comply with the Obergefell decision. For example, how should a husband’s presumption of paternity apply in a same-sex divorce between two women? In McLaughlin v. McLaughlin, No. 2 CA-SA 2016-0035 (Filed October 11, 2016), the Arizona Court of Appeals reconsidered the issue.
K. McLaughlin and S. McLaughlin married in California in 2008. They agreed to have a child by artificial insemination and raise it together as equal parents.
K. McLaughlin became pregnant and gave birth to a son. S. McLaughlin Jr. stayed home and raised the boy while K. McLaughlin went back to work. The couple agreed that S. McLaughlin would adopt the boy legally whenever the law changed to allow the adoption. They also agreed that if they divorced before S. McLaughlin could adopt, they would share joint custody.
Two years later, K. McLaughlin left S. McLaughlin and took the boy with her. S. McLaughlin filed for divorce and sought equal custody of the child. K. McLaughlin opposed. She argued that although the two were married, the presumption of paternity could not apply to S. McLaughlin.
The court applied the same presumption of parenthood to S. McLaughlin that it would have to a male spouse. The court did not allow K. McLaughlin to attempt to rebut the presumption. K. McLaughlin appealed.
Under Obergefell, Paternity Presumption Applies to a Same-Sex Marriage
Under Arizona statutes, a legal parent is either a woman who gives birth, or a man whose paternity is established. The state statutes are gender specific, since state law prior to Obergefell only permitted heterosexual marriages. The Court of Appeals found that, because of Obergefell, the paternity statutes had to be interpreted in a gender-neutral manner.
Under the law, paternity can be established in various ways. One is biological, consisting of DNA testing. Another is by rebuttable presumption. A married man is presumed to be the father of his wife’s child. And the person whose name appears on the birth certificate as the second parent also has a presumption of paternity. Finally, a man is presumed to be the father if the parents file sworn declarations identifying his as the father.
Applying Obergefell to Arizona’s Paternity Statute
The Court found that it was possible to apply the paternity presumption statute in a gender-neutral fashion. Therefore, it was obligated to do so. The court termed the phrase “parenthood presumption”. The Court noted that the biological path to establishing paternity cannot apply in a same-sex marriage. However, the marriage presumption can and must apply. Its primary purpose is to establish financial support for the child. It also serves to keep family groups together. These are equally important considerations in same-sex marriages as in heterosexual marriages.
The Court of Appeals agreed with the lower court that S. McLaughlin was entitled to a presumption of parenthood. She was married to K. McLaughlin for 10 months before K. McLaughlin gave birth. However, the Court disagreed with the lower court about whether K. McLaughlin could attempt to rebut that presumption. The Court determined that mothers in same-sex marriages had the same right to rebut a paternity presumption that they did in heterosexual relationships.
Estoppel Applies Here
The Court found that it was not necessary to discuss rebuttal since K. McLaughlin was estopped from claiming that S. McLaughlin was not a parent. Equitable estoppel applies when one party makes promises that the other party relies and acts on.
Here, the parties were married and agreed to have a child together. S. McLaughlin stayed home and cared for the child for two years. The couple signed agreements specifying that they were equal parents. They agreed that S. McLaughlin would adapt as soon as it was legal to do so. And K. McLaughlin specifically waived any protections that would give her greater custody rights than S. McLaughlin. Under these circumstances, K. McLaughlin is estopped from rebutting the presumption of parenthood.
The Arizona Court of appeals affirmed the judgment below. With different reasoning, it came to the same conclusion as the lower court. It awarded costs to S. McLaughlin.