On September 19, 2017, the Arizona Supreme Court delivered its decision in McLaughlin vs. Jones, (CV-16-0266-PR) answering the question of whether the statutory presumption of parenthood arising from a marriage applies equally to same-sex marriages as it does to other (opposite-sex) marriages. The decision is particularly interesting since conflicting opinions were recently issued by Divisions 1 and 2 of the Arizona Courts of Appeal.
The Background
The legal issues addressed by the Arizona Supreme Court are predicated upon the following statutes and cases existing at the time of McLaughlin v. Jones:
a. A statutory presumption exists that a husband is the father of a child born to his wife during the marriage.1
b. The ‘constellation of benefits the States have linked to marriage’ apply equally to same-sex marriage.2
The Case Facts
In this case, the underlying facts were not in dispute. Kimberly McLaughlin and Suzan Jones were a same-sex couple, married in California in 2008. In 2010, Kimberly became pregnant through artificial insemination. They then relocated to Arizona.
Prior to the birth of the child, Kimberly and Suzan entered into a joint parenting agreement providing that Suzan is a ‘co-parent’ of the child with equal rights, responsibilities, and obligations of a biological parent. The joint parenting agreement provided that in the event of a termination of the relationship between Kimberly and Suzan, they would both continue to share child custody and visitation.
The child was born during June 2011. Suzan provided care for the baby while Kimberly worked full-time. Two years later, Kimberly moved out of the home with the child and effectively eliminated contact between Suzan and the child, notwithstanding the joint parenting agreement.
Suzan filed a petition for dissolution of marriage seeking legal decision-making and parenting time in loco parentis (meaning standing "in the place of a parent") In addition, Suzan raised a constitutional challenge to Arizona’s refusal to recognize same-sex marriages entered into in other states. Thereafter, the US Supreme Court rendered its decision in Obergefell v. Hodges3 holding that the Fourteenth Amendment guarantees same-sex couples the fundamental right to marry.
The Decision
Ruling by Lower Trial Court
At trial, the trial court found that Suzan was a presumptive parent under A.R.S. § 25-814(A)(1) based upon the following:
o To deny the presumption would violate Suzan’s Fourteenth Amendment rights as described by the Supreme Court’s decision in Obergefell; and
o A.R.S. § 25-401(B) would require that Suzan pay child support while denying her any parental rights.4
Ruling by Court of Appeals –Division 2
Kimberly sought special action relief at Division 2 of the Arizona Court of Appeals. Although the Court of Appeals accepted jurisdiction, relief was denied. The Court of Appeals reasoned that based upon Obergefell, Suzan is a presumptive parent under A.R.S. § 25-814(A)(1). Further, the Court held that Kimberly was equitably estopped from rebutting the presumption of parentage. In other words, Suzan was also a parent of the child.
Ruling by Court of Appeals –Division 1
Shortly after the McLaughlin v. Jones Division 2 decision, Division 1 of the Court of Appeals faced the same question in Turner v. Steiner5. The Court also looked at whether a same-sex spouse is entitled to the benefit of the presumption of parenthood under A.R.S. § 25-814(A)(1). In a split decision, Division 1 concluded that the parental presumption did not apply to a same-sex spouse because the parental presumption is predicated upon biological differences between men and women, and Obergefell did not mandate gender-neutral interpretation of A.R.S. § 25-814(A)(1).
Ruling by Arizona Supreme Court
Kimberly petitioned the Arizona Supreme Court to review the Division 2 Court of Appeal’s finding. The Supreme Court found that the legislature intended A.R.S. § 25-814(A)(1) to apply only to males and thus was inapplicable to Suzan. However, excluding Suzan from the marital paternity presumption [contained in A.R.S. § 25-814(A)(1)] violates the Fourteenth Amendment; since A.R.S. § 25-814(A)(1) provides an evidentiary benefit resulting from marriage, it will result in differential treatment of same-sex couples. In an opposite-sex marriage, a man will be presumed to be the father of a child if his wife is artificially inseminated, while, according to the Division 1 Court of Appeal’s view, this is not true for a parent in a same-sex marriage under the same circumstances.
The Court found that the Turner court erred because it viewed the A.R.S. § 25-814(A)(1) presumption as proof of biological parentage. Since the presumption does more than just identify biological fathers6, same-sex spouses cannot be denied the benefits of the presumption. Essentially, the Supreme Court adopted the broader view of the application of the presumption – meaning both Suzan and Kimberly are presumed to be parents.
Having found the presumption to be constitutionally defective, the final issue facing the Supreme Court was whether to nullify the parental presumption or extend that parental presumption to Suzan and similarly situated same-sex couples. Since the principal purpose of the statutory presumption is to ensure financial support from two parents, the Court concluded that extending the presumption supports this “important governmental objective”7, ensures that a child spends parenting time with both parents, and promotes strong family units. Therefore, the Court extended the parental presumption to same-sex spouses.
Conclusion
The dissenting opinion was authored by Justice Clint Bolick. He agrees with the Court’s decision regarding the constitutional issues, but cautions against extending A.R.S. § 25-814(A)(1) because “rewriting our state’s paternity statute .… is unnecessary, unwise, and beyond the proper scope of judicial power.”
The Supreme Court decision is welcomed because it is in line with Obergefell, resolves conflicting decisions between Division 1 and Division 2, and brings clarity to a previously unsettled area of law regarding same-sex spouses.
1A.R.S. § 25-814(A)(1)
2Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015
3Obergefell v. Hodges,135 S. Ct. 2584, 2601 (2015)
4A child who is born as the result of artificial insemination is entitled to support from the mother as prescribed by this section and the mother's spouse if the spouse either is the biological father of the child or agreed in writing to the insemination before or after the insemination occurred."
5242 Ariz. 494 (App. 2017)
6 Including participation in decision-making and exercising parenting time
7@ page 11
