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Same-Sex Marriage and Child Custody in Arizona

Posted on : May 9, 2017, By:  Christopher Hildebrand
Same Sex Marriage and Child Custody in Arizona

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.

Case Facts

Child Custody for Same-Sex Couples in Arizona.

Child Custody for Same-Sex Couples in Arizona.

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 child legally whenever the law changed to allow the adoption. They also decided that if they divorced before S. McLaughlin could adopt the child, 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 laws are gender specific since state law before 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.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
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I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
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21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
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I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
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I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
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Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

Applying Obergefell to Arizona’s Paternity Statute

Same-Sex Marriage and Child Custody in Arizona.

Same-Sex Marriage and Child Custody in Arizona.

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 natural path to establishing paternity cannot apply in a same-sex marriage. However, the marriage presumption can and must apply. Its primary purpose is to secure 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 ten 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 the other party relies and acts upon.

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 explicitly 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.

Disposition

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.

If you have a question about child custody in Arizona, please call to speak to one of our experienced Scottsdale and Phoenix Arizona child custody attorneys at (480)305-8300.



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