Court: Parental rights not assured when same-sex couples divorce

The Arizona Court of Appeals has ruled that the former wife of a woman who gave birth via artificial insemination is not the child’s legal parent, overturning a lower-court ruling that granted the woman parental rights.

The case shines a light on new legal issues that can surface when a samesex marriage ends in a divorce. It also leaves Arizona with two different rulings from separate panels of the state Court of Appeals on the topic of parental rights in same-sex marriages.

The matter ultimately will be decided by the Arizona Supreme Court.

A previous ruling by a different panel of the Arizona Court of Appeals seated in Tucson ruled differently in a similar case. That case already is headed to the state Supreme Court, where arguments are scheduled for Tuesday.

In the most recent case, an Appeals

Court panel in Phoenix ruled that even though Liza Oakley was listed as the father on the child’s birth certificate, she does not have parental rights because she did not formally adopt or biologically father the child. Oakley was legally married to the biological mother at the time of the birth, but they later divorced.

The Appeals Court ruling reversed a Family Court decision in Oakley’s favor based on her claim that state law grants parental rights to a man under a variety of different circumstances, including if he and the mother were married within 10 months of the child’s birth. The Family Court is part of the Superior Court system.

The state Appeals Court, however, said Arizona’s law is “gender-specific and cannot be applied to — or rewritten by the courts to apply to — women.”

The court, in its decision, acknowledges that “this issue will recur in other cases with increasing frequency.” The court added that while it understands every child needs stable parental relationships, “the paternity statutes as they are currently written provide no remedy to Oakley, and we cannot rewrite the statutes to do so, no matter how laudable that outcome might be as a matter of public policy.”

Claudia Work, a Phoenix attorney representing Oakley, said the woman remains hopeful that she will be seen as a legal parent. “We are disappointed and believe this is the wrong decision that came out, but it’s going to be the (Arizona) Supreme Court who resolves this issue,” Work said.

Next week, the Arizona Supreme Court will start hearing arguments in a similar case involving Kimberly and Suzan McLaughlin, two women who were legally married when Kimberly gave birth to a child through artificial insemination; they later separated.

Kimberly McLaughlin argued she is the only person with parental rights to the child. Both Pima County Superior Court and the second division of the Arizona Court of Appeals disagreed in 2016. That ruling came after the U.S. Supreme Court legalized same-sex marriage in 2015.

Work said the McLaughlin ruling will determine the final outcome in Oakley’s case.

Oakley had been in a long-term committed relationship with Heather Turner when the couple began attempting to conceive a child through artificial insemination in 2013, according to court records. Oakley and Turner married in October 2014, and Turner gave birth in September 2015.

Court records said Oakley “played an active role” in the artificial-insemination process by reviewing sperm-donor profiles and accompanying Turner at appointments, but did not pay for any services or sign any fertilityclinic documents.

Turner signed documents at the fertility clinic, including one that contained a provision stating that any child born from the process would be the legal child of the recipient, “which designation shall include both recipient and recipient’s husband or partner if applicable,” court documents said.

Oakley was present at the child’s birth, and Turner listed Oakley as the child’s father on the birth certificate, but court records said neither woman took further steps to determine whether Oakley needed to formally adopt the child to receive parental rights.

That created an issue in May 2016, when Turner petitioned for divorce from Oakley and asked for sole legal and physical custody of the child on the basis that Oakley was not the child’s adoptive or biological parent.

Turner also asked the court to grant Oakley supervised visitation with the child and require that Oakley pay child support, also asserting that Oakley did not have rights to temporary legal decisionmaking or parenting time because she is neither the child’s natural parent nor its adoptive parent, according to court documents.

Oakley asserted that she had rights as the child’s legal parent in a temporary-orders hearing, saying that she qualified as the presumed parent under state law.

The Family Court initially disagreed, stating Arizona law only applies to men and that even if it could be applied to Oakley, it would be rebutted on the basis that Oakley is not biologically related to the child. The court entered temporary orders identifying Turner as the child’s sole legal parent and granting Oakley supervised visitation.

Oakley successfully moved for reconsideration, with the Family Court reversing its previous decision and ruling in her favor. That reversal came when the Family Court cited the Arizona Court of Appeals’ ruling in the McLaughlin case, which decided Arizona’s presumption-of-paternity statute must be read and applied gender-neutrally in light of the U.S. Supreme Court ruling.

The Family Court also cited evidence that showed “the two women intended to raise the child together as co-parents.”

Turner petitioned the Arizona Court of Appeals, which issued its ruling Thursday in her favor. That panel of the Appeals Court said the presumption-of-paternity statute cannot be applied genderneutrally because the language presumes the father is a man. The court noted that Oakley could have retained that right under Arizona law had she adopted the child.

Oakley claimed that the landmark decision by the U.S. Supreme Court in the 2015 Obergefell vs. Hodges case that guaranteed the right of same-sex couples to marry means the Arizona law establishing paternity should be read gender-neutrally to apply to same-sex couples with children.

But the Appeals Court refuted that argument, saying the statute’s purpose is to determine “whether a man is a child’s biological father” and not to “establish a term or condition associated with marriage.”

Lawyers for Turner did not immediately return requests for comment. Work said it is in the best interest of the child that the marital presumption of paternity be applied in Oakley’s case.

“(It) is necessary for the protection of children and families, including the non-biological parents who plan for these children, who act as second parents during the marriage,” Work said. “To find otherwise essentially is stating that these children are all in single-parent households.”

Work reiterated her hope that the McLaughlin case will end in favor of granting same-sex partners parental rights to a child born of artificial insemination, saying that a decision that rules otherwise would be harmful to children. “They’re potentially being exposed to having a second parent yanked out of their lives at the whim of the first parent,” Work said.