Arizona Supreme Court Grants Equal Rights to Same-Sex Parents

By Christopher Coble, Esq. on September 21, 2017 | Last updated on March 21, 2019

Over two years after the Supreme Court legalized same-sex marriage, same-sex couples are still battling on the fringes for the same rights as heterosexual couples. And when it comes to parental rights, those battles -- for custody, visitation, even access to a spouse and child during and after childbirth -- can be fierce.

The Arizona Supreme Court leaned on that U.S. Supreme Court ruling to settle one of those battles, pertaining to parental rights under the state's paternity statute. Only there was no "pater" in this case -- it involved two female spouses, and the rights of the non-biological parent.

Paternity Presumption

Under Arizona law, a man is presumed to be the father of any child to whom his wife gives birth during the marriage or in the 10 months immediately following its dissolution. This presumption of paternity provided the spouse with certain rights and certain responsibilities. The question in this case was whether a non-biological parent and ex-spouse in a same-sex marriage had the same rights as a presumptive father.

Kimberly and Suzan McLaughlin married in California in 2008 and had a son via artificial insemination in 2011. According to court documents, Kimberly worked outside the home as a physician while Suzan stayed home and cared for the boy. Just two years later in 2013, Suzan filed petitions for dissolution of the marriage and for legal decision-making and parenting rights. But after the couple separated, Kimberly cut off contact between the boy and Suzan, who then sued to have her rights as a parent recognized.

Paternity Parental Presumption

Suzan argued the Arizona parental-rights statute must contain a gender-neutral interpretation to protect the rights of all non-biological parents. And the Arizona Supreme Court agreed, ruling that the same heterosexual presumption applies to spouses in same-sex marriages as well. Why? "Because couples in same-sex marriages are constitutionally entitled to the 'constellation of benefits the States have linked to marriage,'" the court reasoned.

"Legal parent status is, undoubtedly, a benefit of marriage," the Arizona court unanimously ruled. "It would be inconsistent with Obergefell [the Supreme Court's same-sex marriage ruling] to conclude that same-sex couples can legally marry but states can then deny them the same benefits of marriage afforded opposite-sex couples."

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