When a married woman in Arizona gives birth, her husband is presumed to be the father. The father’s parentage is subject to challenge by, for example, genetic testing — but the presumption is strong. That law is well established, and is similar to laws in most (if not all) of the other American jurisdictions.
Arizona’s resistance to same-sex marriage dissolved after the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges. The high court did more than just invalidate laws restricting the right of same-sex couples to marry, however. The Obergefell decision struck down limitations on “the constellation of benefits that the States have linked to marriage” when applied to same-sex couples.
So what does the Supreme Court ruling have to say about birth of a child to two married women? Nothing directly — but the inferences are strong. A recent Arizona Supreme Court case spells out a clearer answer.
Marriage, pregnancy and birth of E
Suzan and Kimberly McLaughlin married in California in 2008. California allowed same-sex marriages, although the Supreme Court ruling had not yet been issued. The two women knew they wanted to have a child together. First Suzan and then Kimberly tried to get pregnant, utilizing a service which provided an anonymous sperm donor.
When Suzan and Kimberly moved to Arizona in 2010, Kimberly was pregnant. The couple knew they were operating in uncertain legal territory. The Obergefell decision was still four years away, and Arizona did not yet recognize same-sex marriages.
In order to protect Suzan’s claim to parentage of the expected child, the couple signed a joint parenting agreement. They acknowledged that both Suzan and Kimberly would be “co-parents” of the child. They even agreed that if they should ever separate, they would agree in advance to handle child custody and visitation as if they were both legally parents.
In June, 2011, Kimberly gave birth to a boy, identified in the later court proceedings simply as “E”. Kimberly went back to work and Suzan stayed home to care for E. That arrangement continued for the first two years of E’s life.
Separation and custody/visitation dispute
When Suzan and Kimberly’s relationship deteriorated, Kimberly moved out of the couple’s house — and took E with her. She then cut off Suzan’s contact with her son.
Suzan filed a petition for dissolution of her marriage, and asked for visitation and custody rights to E. Arizona had still not recognized same-sex marriages by that time. The State of Arizona intervened in the case, and argued that Arizona was not required to acknowledge the couple’s marital status.
While the divorce proceeding was pending, the U.S. Supreme Court ruled in Obergefell. Paradoxically, that validated the McLaughlins’ marriage, and simultaneously made clear that they could get divorced. But the Supreme Court had not yet specifically ruled on parentage questions.
A Tucson judge ruled that Arizona’s parentage law gave Suzan rights to custody and visitation. Kimberly appealed, and the Arizona Supreme Court decided the question last week.
Same-sex parents entitled to marital presumptions
In McLaughlin v. Jones, September 19, 2017, Arizona’s high court ruled that same-sex couples are entitled to all the marital “terms and conditions” afforded to heterosexual couples. By the time of its ruling that outcome could hardly be a surprise, since the U.S. Supreme Court expanded on its earlier ruling just three months before. Still, the clear expression of parentage law helps settle uncertainties.
Under Arizona’s existing parentage law, a man is presumed to be the father of a child born to his wife. The presumption applies if they were married at any time in the ten months before or after birth. Now the Arizona courts have made clear that the same presumption applies to the birth mother’s wife, as well.
The U.S. Supreme Court’s recent decision relates to a similar, but slightly different, consideration. It involved Arkansas’s refusal to add a woman’s wife to the birth certificate for their child. Arkansas had argued that there was a legitimate state purpose in applying their parentage presumption only to heterosexual couples. The Supreme Court did not buy that argument, and summarily ordered Arkansas to add wives to the birth certificates in two separate but similar cases. Pavan v. Smith, June 26, 2017.
Most other states have similar statutes, though the text may be changing — slowly. The Uniform Law Commission, which publishes proposed legislation for states to consider, has long offered a Uniform Parentage Act. That law, adopted in just eleven states, follows Arizona’s (and Arkansas’s) approach. Last year, however, the Uniform Law Commission rewrote its proposed law to expand its coverage to same-sex couples. The new Uniform Parentage Act has not yet been adopted in any state.
What does parentage have to do with elder law?
At Fleming & Curti, PLC, we do not do divorce, child custody or visitation work. So why do we think the McLaughlin v. Jones case is important?
People who do not get around to doing their estate planning are subject to the law of “intestate succession.” That means that a child can inherit from a parent — either parent. It also means that a parent can inherit from a child. With formalization of those relationships, the lines of succession will be different, and clearer.
The second mother will not be the only one to have expanded rights in the wake of this decision, either. Grandparents might have the ability to enforce visitation rights because their legal relationship will be formalized.
Finally, imagine that Suzan McLaughlin’s parents left their estate to Suzan and her “issue.” Under the old rules, E would have no interest in his grandparents’ estate. Now he will be treated the same as any of his cousins. That seems like an excellent development for all concerned.
Update: October, 2020
The story of E returned to the appellate courts three years later. This time, the question was slightly different. How should E’s birth certificate identify Suzan and Kimberly?
Arizona’s Department of Health Services only permits two possibilities. Either one parent would be identified as “mother” and the other as “father,” OR both parents would be identified as “parent.” Kimberly argued that she should be identified as “mother,” and the divorce court could do whatever it could to change the designation for Suzan. Alternatively, Kimberly suggested that she could be listed as “biological mother” and Suzan could be listed as “legal parent” or “legal mother.”
Suzan, on the other hand, asked the divorce court to order the state to list both of them as “mother” on E’s birth certificate. If that could not be done, she preferred to be listed as “parent” and that Kimberly have the same designation.
The divorce court judge decided that she did not have authority to order the state to change its choices, and so ordered that E’s birth certificate list both women as “parent.” Kimberly appealed.
Now the Arizona Court of Appeals has reviewed that order, and directed the divorce court judge to try again. The appellate judges ruled that the divorce court does have jurisdiction to order the state to modify E’s birth certificate. The judge should order that E’s birth certificate list both women as “mother.” In re the Marriage of McLaughlin and Swanson, October 5, 2020.