Logo
Call Now(480)305-8300

What Happens When Only One Spouse Adopts a Child in Arizona?

Posted on : October 23, 2017, By:  Christopher Hildebrand
What Happens When Only One Spouse Adopts a Child in Arizona.

What Happens When Only One Spouse Adopts a Child in Arizona?

The Arizona Court of Appeals-Division One reviewed and rendered a decision in Doty-Perez v. Doty-Perez. Judge Jon W. Thompson delivered the decision for the appeals court, in which Presiding Judge Diane M. Johnsen and Judge Charles W. Gurtler joined.

S. Doty-Perez and T. Doty-Perez began living together in October 2010, and in July 2011 they legally married in Iowa. Soon after their marriage, they moved to Arizona. Following their marriage, T. Doty-Perez adopted four special needs children in May 2012, January 2013, April 2013, and February 2014, respectively.

At the time of the adoptions, Arizona did not recognize same-sex marriage and legally prohibited same-sex adoptions. While the women agreed T. Doty-Perez would be the adoptive parent, it was understood by both that they intended to raise the four children together, as two parents.

What Happens When Only One Spouse Adopts a Child in Arizona.

What Happens When Only One Spouse Adopts a Child in Arizona.

In April 2014, shortly after the fourth adoption became final, the relationship between the two women began to erode. S. Doty-Perez wanted to adopt the children through a second-parent adoption, but T. Doty-Perez would not consent. Subsequently, S. Doty-Perez moved out of the marital home and did not petition to adopt the children. In October 2014, the courts declared that Arizona’s ban on same-sex marriage unconstitutional. S. Doty-Perez filed a ‘Petition for Dissolution of Non-Covenant Marriage Without Minor Children’ and requested visitation of the children. In May 2015, S. Doty-Perez amended her original petition to a ‘Petition for Dissolution of Marriage WITH Children and Request for Joint Legal Decision Making and Parenting Time.’

In June 2015, the U.S. Supreme Court decided Obergefell. In that case, the Court held that “the Fourteenth Amendment requires states to both license same-sex marriages and to recognize same-sex marriages that were lawfully licensed and performed in another state.” In July 2015, S. Doty-Perez file a motion with the Court that would declare her a legal parent, and submitted a memorandum to support an amended petition for ‘dissolution with children.’



After additional briefing and oral arguments, the court denied S. Doty-Perez’s petition. The Court found that S. Doty-Perez had proven through submitted evidence that, had Arizona allowed same-sex marriage and adoption, she and T. Doty-Perez would have jointly filed a legal request to adopt the children. However, after the October 2014 ruling, S. Doty-Perez could have filed a legal request to adopt the children but she failed to do so. Subsequently, S. Doty-Perez filed an appeal seeking reversal of the family court’s order denying her request to be declared a legal parent of the four children legally adopted by T. Doty-Perez while the two were married, in light of the U.S. Supreme Court’s marriage equality decision in Obergefell.

Decision and Discussion

S. Doty-Perez believed the family court should have acknowledged her to be a legal parent through either two legal avenues; 1) by modifying the adoption decrees to affirm her as a legal parent of the children, or 2) by declaring her a de facto parent with full legal parent status, meaning someone who cared for the children on a day-to-day basis in the role of a parent, fulfilling basic needs and providing care and affection for a significant amount of time.

What Happens When Only One Spouse Adopts a Child in Arizona.

What Happens When Only One Spouse Adopts a Child in Arizona.

As to modifying the adoption decrees, S. Doty-Perez argued the family court should apply the “remedy” of a nunc pro tunc order to retroactively correct the earlier ruling. Which, according to the Court, is not a remedy and therefore not a viable option. Further, S. Doty-Perez cited a statute that reads in part “….A husband and wife may jointly adopt children.” S. Doty-Perez maintains that because this statute would have allowed her to adopt the children with T. Doty-Perez, and Arizona’s refusal to recognize their marriage, the family court should have ruled that she “in effect did jointly adopt the children with T. Doty-Perez.”

However, S. Doty-Perez did not file a petition to adopt as such adoption would have required T. Doty-Perez’s consent which S. Doty-Perez did not have. Additionally, T. Doty-Perez argued that Arizona Revised Statute Section 8-103(A) does not require married couples to adopt jointly, but only permits them to do so. The Court is obliged to grant parentage only to a person who actually petitions for adoption. As to the matter of de facto parentage, T. Doty-Perez asserts that Arizona does not recognize de facto parentage and the Court agreed.

Further, S. Doty-Perez also claims that the family court’s failure to grant her legal parent status violates the Fourteenth Amendment’s due process and equal protection guarantees. The Court recognized that under Obergefell, Arizona must credit the parties’ marriage as having taken place in 2011, prior to T. Doty-Perez’s adoption of the four children. However, the Court did not agree with S. Doty-Perez’s contention that the right of same-sex couples, whose marriages are recognized under the Fourteenth Amendment of the U.S. Constitution, requires that states retroactively modify adoptions by those in same-sex marriages who would have jointly adopted if allowed.

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.
A Google User
A Google User
20:31 20 Sep 17
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.
A Google User
A Google User
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.
Google User
Google User
14:58 04 Oct 17
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
A Google User
A Google User
16:03 22 Nov 17
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!
A Google User
A Google User
22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
A Google User
A Google User
18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
A Google User
A Google User
19:22 23 Aug 17
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.
A Google User
A Google User
17:44 23 Jun 16
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
Larry Flint
21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13
I cannot express enough how thankful I am that I found Hildrebrand Law. Chris Hildebrand is an excellent attorney who has my best interests in mind and always encourages me to do the right thing regardless of what the opposing party is doing. Chris knows family law very well and relies on that knowledge to format options and solutions for each situation that may arise. He knows what the Court expects and what will and will not be tolerated. He has attempted to settle this case quickly and as inexpensively as possible from the start. His paralegal, Laura, is remarkable. She is organized, quick to respond, and compassionate. Chris is well prepared with a binder full of detailed and organized information and that is likely due to her thorough skills and expertise. While getting a divorce that was unexpected is a painful and difficult process, Chris and Laura treat my family and I like friends rather than another just "client." I am hopeful that I do not need to recommend divorce lawyers to anyone in the future but if I do, Hildebrand Law will be a recommendation I would give hands down.
Lindsay Donoian
Lindsay Donoian
06:53 27 Sep 14

In the absence of a constitutional directive to retroactively modify adoption decrees, the Court trusted what is allowable under Arizona law. Arizona adoption is statutorily created. There is no presumption in any Arizona statute that grants legal parental rights or obligations to a non-adoptive spouse merely because of his or her marriage to a person who has adopted a child. To be assigned such rights, one must legally adopt the child.

What Happens in Arizona When Only One Spouse Adopts a Child.

What Happens in Arizona When Only One Spouse Adopts a Child.

The Court holds that S. Doty-Perez was not entitled to parental status or full legal parental rights under any of the relevant statutory provisions. Arizona Revised Statute Section 8-117(A) clearly states that the “rights, privileges, duties …” created by an adoption decree exist between the adopted child and the adoptive parent. The statute consequently declares the adopted child’s status is qualified only to an adoptive parent. It does not unconditionally create an adoption of the child by a spouse who has not actually adopted the child.

Additionally, the Court is without authority to bestow legal parent status to S. Doty-Perez when she never actually petitioned the family court to acquire that status while she was still married to T. Doty-Perez. For the reasons stated above the Court affirmed the family court’s order denying Doty-Perez’s request to be declared the legal parent of the four children legally adopted by T. Doty-Perez during their marriage.

If you have a question about child custody in Arizona, please call to speak to one of our experienced Scottsdale and Phoenix child custody Arizona attorneys at (480)947-4339.

[wpseo_address show_state=”1″ show_country=”0″ show_phone=”1″ show_phone_2=”0″ show_fax=”0″ show_email=”0″ show_url=”1″ show_logo=”0″]