Arizona Considers Parental Rights in Same-Sex Divorce Case

Suzan and Kimberly McLaughlin married in California in 2008. They then decided to start a family in 2010 via artificial insemination with an anonymous sperm donor. In 2010, Kimberly became pregnant. Before the baby was born, the couple moved to Tucson, Arizona, and created a parenting agreement that stated that they were equal parents to the child. Kimberly gave birth in 2011 and everything seemed well until Kimberly moved out in 2013, took their son with her, and cut ties to Suzan.

Suzan filed for divorce in 2013, as well as legal papers for her rights to time with her son. Kimberly appealed the custody rights and it has now gone to Arizona’s Supreme Court. Currently, the state is considering the case and it’s brought up a lot of questions and concerns about the legalities of parenthood in the state.

CArizona’s laws state that “the husband of any woman who gives birth within 10 months of a marriage is presumed to be the parent, even if the child is the product of artificial insemination. And that presumption also means that in cases of divorce, the father is entitled to claim rights of custody and visitation despite the lack of a biological link to the child.”

Shannon Minter, Suzan’s lawyer, has argued then that there’s no reason why Suzan should not have the same rights to the child she had with Kimberly.

“I can’t stress enough that we are asking for exactly the same substantive legal treatment as would apply to an opposite-sex married couple using artificial insemination to have a child,” he told the court.

Minter added: “The United States Supreme Court has said twice now … that whatever the rules are about how to determine the legal parentage of children born to married couples, those have to be applied equally to all married couples regardless of the gender of the spouses.” The first instance was in Obergefell v. Hodges and the second was on Monday, when the Supreme Court ruled that Arkansas must put same-sex couples on birth certificates.

Though the justices seem to lean toward a ruling that would favor Suzan’s parental rights, they are split on whether a favorable ruling would allow them to rewrite the law to make it gender non-specific. If they cannot do this, then the only option would be to void the law, which would then leave the state without any laws on paternity until the legislation writes a new one with non-gender specific terms.

“This potentially affects tens of thousands of families,” Minter said, “The court obviously is taking it very seriously.”