AZ APP 2: LESBIAN SPOUSE EQUAL TO MAN AS PRESUMPTIVE PARENT OF CHILD BORN DURING MARRIAGE

A same-sex couple got married in California. They made a written agreement to have a child by artificial insemination and to be equal parents. After pregnancy was achieved, the couple moved to Arizona. After the child was born, the biological mother returned to work while her spouse stayed home to care for him. Two years later, while Obergefell was still pending in the federal courts, the couple split and petitions for dissolution and parenting were filed in Arizona state courts.

After Obergefell was decided, the Superior Court ruled on a preliminary question of parental rights. Recognizing the importance of the questions, the Court of Appeals, Division Two, accepted special action jurisdiction and issued its opinion today.

A.R.S. § 25-814 states that “a man is presumed to be the father of a child” if the child is born during the marriage. The statute goes on the provide that the presumption “shall be rebutted by clear and convincing evidence”.

The three judge panel ruled that under Obergefell, the only way to constitutionally apply the statute is to apply it in a gender-neutral way. The court also found that that the biological mother was estopped from attempting to rebut the presumption of parenthood. The court found that it would not be equitable to entertain any attempt at rebuttal in light of the couple’s written agreement, written commitment to seek second parent adoption (which was not then available in Arizona), wills recognizing the child as beneficiary, and the fact that the spouse stayed home to care for the child.

The court also concluded that “having two parents to love and support” him was in the child’s best interest.

McLaughlin v Jones (October 11, 2016).