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Same-Sex Marriage and Child Custody in Arizona | Hildebrand Law, PC

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

Same-Sex Marriage and Child Custody in Arizona

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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

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.

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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.

Same-Sex Marriage and Child Custody in Arizona.

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 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.


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 questions about same-sex marriage and child support in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have over 100 years of combined experience successfully representing clients in child custody and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona child custody or family law case around today.

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Chris Hildebrand wrote the information on this page about child custody and same-sex marriage/divorce in Arizona  to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.



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