Ariz. high court will decide on parentage

Same-sex case may have wider impact in state

A dispute in a custody battle between a samesex couple could impact thousands of Arizona children born via artificial insemination — regardless of the sexual orientation of their parents.

The case before the Arizona Supreme Court — and numerous others making nearly identical arguments in Arizona and nationwide — is part of ongoing efforts to reinterpret Arizona laws following U.S. Supreme Court rulings granting same-sex couples the right to marry.

“Anytime the U.S. Supreme Court does something, they leave these open-ended statements and ideas, and the lower courts have to fill in the blanks,” said Keith Berkshire, a Phoenix attorney representing a biological mother in one of the custody cases. “There’s this second wave of litigation.”

Broadly, the debate is whether the U.S. Supreme Court ruling two years ago legalizing marriage for same-sex couples required states

to interpret all laws relating to marriage — from divorce and child custody to taxes and property ownership — in a gender-neutral way.

In some states, that has played out in legal challenges over states refusing to put both spouses on a birth certificate or to allow them to jointly adopt.

In Arizona, the conflict is over parental rights and whether the state’s socalled “paternity” statute is about a marriage certificate or biology.

There are still hundreds of statutes on the books in Arizona, including the one establishing parentage, that mention husband and wife or define marriage as between a man and a woman.

The Republican-controlled state Legislature has had no interest in changing those statutes, despite efforts from some Democratic lawmakers.

As a result, it’s up to the courts. And the outcome could have impacts far beyond the rights of same-sex couples.

“Any married man who is raising a child who he absolutely knows is not his — or he has no idea — can lose their child the minute the wife decides to play the DNA card,” said Claudia Work, a Phoenix attorney representing several nonbiological parents fighting for custody rights against former same-sex spouses.

‘Constellation’ of rights

In the U.S. Supreme Court’s Obergefell vs. Hodges ruling two years ago, a split court ruled that same-sex couples could marry and states must grant them the same rights afforded to an oppositesex couple married in that state.

Under that ruling, the opinion required states to give same-sex couples the full “constellation” of rights already granted to opposite-sex couples.

Some, including Maricopa County Attorney Bill Montgomery and the socially conservative Center for Arizona Policy, have argued the high court required states only to recognize marriages, not to extend gender neutrality to every marriage-related statute.

“My reading was that it only applied to marriage,” Center for Arizona Policy President Cathi Herrod said.

But she said a June U.S. Supreme Court decision ordering Arkansas to list both married same-sex spouses on a newborn’s birth certificate throws that into question. Arizona already is doing this, but it hasn’t rewritten its parentalrights law to apply to same-sex spouses.

Arkansas argued that birth certificates are about biology and not marriage. The high court disagreed, calling the state inconsistent.

Arkansas lists the husband and wife on birth certificates in cases of artificial insemination, even though in such situations, the husband is often not the biological father. But even with the Arkansas ruling, the Supreme Court hasn’t cleared up all of the questions, because custody laws in every state are different.

“We now await the Arizona Supreme Court decision to see how they’re going to interpret Arizona law,” Herrod said.

Arizona case

Within a few days before and after the high-court opinion in the Arkansas case, the Arizona Court of Appeals issued two different rulings in two similar cases.

In one case, they ruled that the exwife of a woman who gave birth via artificial insemination is not the child’s legal second parent, because she isn’t the biological father and never formally adopted the child.

In the other, the Appeals Court ruled that the ex-wife is the legal parent. It’s the case now before the Arizona Supreme Court.

In the state Supreme Court case, Kimberly and Suzan McLaughlin married in California in 2008 and later moved to Arizona. Arizona retroactively recognized the marriage as legal following the Obergefell ruling.

The couple decided to have a baby via artificial insemination using an anonymous sperm donor. Kimberly got pregnant, and they had a son in 2011.

Kimberly worked outside the home as a physician, while Suzan stayed home and cared for the boy, according to court records.

Two years later, the couple separated and Kimberly moved out with the child. She cut off all contact between the boy and Suzan, according to court records.

The Arizona statute addressing parental rights states that “a man is presumed to be the father of a child” if he and the mother were married within 10 months of a child’s birth — a period of time covering the gestational period.

“Our paternity statute isn’t based on the birth certificate, so the argument about birth certificates doesn’t apply,” Berkshire said. “Our statute is purely about biology.”

The Arizona Supreme Court could rule any day.

Work, the attorney for Suzan McLaughlin, is arguing the Arizona parental-rights statute must have a genderneutral interpretation to protect the rights of all non-biological parents.

“If a child is born during a marriage, then the husband or, our contention is, the spouse is deemed to be the legal second parent unless proven otherwise,” she said. “It’s not an issue of biology; it’s an issue of equal treatment.”

Beyond just same-sex couples

If the Arizona Supreme Court decides the statute is all about biology, and not marriage, it could potentially dissolve the parental rights of thousands of nonbiological parents of children born via artificial insemination — in both samesex and opposite-sex marriages.

“This is not a same-sex issue,” Berkshire, who represents Kimberly McLaughlin, agreed.

More than two dozen states have separate statutes setting up parental rights in cases of artificial insemination, where biology doesn’t apply. Arizona is not among them. Without that separate statute to protect the non-biological parent, Work said, a court ruling maintaining that the state law applies only to biological fathers would throw parental rights into chaos.

“It becomes an absolute winning card that the biological parent could play,” she said. “It would potentially result in thousands of children losing a parent overnight.”

Berkshire agreed but said that’s not the court’s problem.

“It would definitely leave artificial insemination — for heterosexual and homosexual couples — in limbo,” he said. “But that’s not the role of the judiciary. That’s the role of the Legislature.”

Berkshire said the court could also take a third route and decide the statute is unconstitutional because it violates the U.S. Supreme Court ruling and cannot be properly read as gender-neutral.

That could strike the statute down entirely and leave Arizona with no law establishing parental rights — and affect nearly every father in the state.

“From my client’s standpoint, if they struck it, it would be fine with us, because then there’s no presumption for anyone,” Berkshire said.

Then, he said, it would be up to the Legislature to figure out how to rewrite the statute to comply with the high court.

“These things will be fixed eventually,” Berkshire said, and then it’s on to untangling the next issue.