Same Sex Marriage LawSame Sex Marriage in Arizona and Child Custody

Same-sex marriage has been legally recognized in Arizona since October 17, 2014. The state had denied marriage rights to same-sex couples by statute since 1996 and by an amendment to its state constitution approved by voters in 2008. Two lawsuits in federal court that challenged the state’s policies ended with a decision that the ban was unconstitutional and the state did not appeal that ruling.

Connolly v. Jeanes

On January 6, 2014, in Connolly v. Jeans, originally Connolly v. Brewer, four same-sex couples filed a class-action lawsuit in district court seeking to have Arizona’s definition of marriage ruled unconstitutional. Two of the plaintiff couples were married in California and two have adopted children through Arizona’s public foster-care system. The amended complaint names as defendants three county court clerks acting in their official capacities and adds two couples from the Flagstaff area and one couple from the Tucson area for a total of seven couples

Majors v. Horne

On March 13, Lambda Legal filed a suit in the same court on behalf of seven same-sex couples and a widow and a widower, each the surviving spouse of a same-sex couple. Several are the parents of minor children and most married in other states, including California, Iowa, Minnesota, New Mexico, New York, and Washington. The case is Majors v. Horne. On September 12, U.S. District Judge John Sedgwick ordered that the state record a death certificate for plaintiff George Martinez as the husband of Fred McQuire.

On October 17, 2014, U.S. District Judge John W. Sedwick, ruling in both cases, declared Arizona’s ban on same-sex marriage unconstitutional and enjoined the state from enforcing its ban, effective immediately. Arizona Attorney General Tom Horne said the state would not appeal the ruling and instructed county clerks to issue marriage licenses to same-sex couples.

On November 18, Arizona announced it would appeal the district court ruling to the Ninth Circuit Court of Appeals. The state solicitor, Robert Ellman, said the state hoped to avoid paying the original plaintiffs’ attorneys fees should the U.S. Supreme Court uphold bans on same-sex marriage.  On December 1, all parties asked the court to suspend proceedings pending action by the U.S. Supreme Court in similar cases from the Sixth Circuit Court of Appeals.  The Ninth Circuit agreed to that request the next day, suspending proceedings until March 25, 2015.

Obergefell v. Hodges

On June 26, 2015, the U.S. Supreme Court held in a 5–4 decision that the Fourteenth Amendment requires all states to grant same-sex marriages and recognize same-sex marriages granted in other states.

McLaughlin v. Jones

In a special action, Division II of the Arizona Court of Appeals was asked to decide whether, in light of Obergefell v. Hodges, the respondent judge erred by finding real-party-in interest Suzan McLaughlin, the female spouse of petitioner Kimberly McLaughlin, is the presumptive parent of the child born to Kimberly, pursuant to A.R.S. § 25-814(A)(1), and finding Kimberly may not rebut that presumption pursuant to § 25-814(C).

In other words, A.R.S. §25-814 states that a husband in a marriage is the presumptive “parent” (legal definition) of a child born during a marriage. That presumption is rebuttable and generally would be rebutted by a paternity test.

McLaughlin extends the presumption under the statute to same-sex couples which means in a same-sex marriage where one party is the biological parent of a child (think conception through artificial insemination) that parent’s spouse while not a biological parent will still be treated as a presumptive parent to that child if the child is born during the marriage creating certain legal rights which would not otherwise exist.

The Court also held that the presumption is rebuttable but the Court did not provide any direction as to what would be sufficient to rebut the presumption. Obviously in that scenario a paternity test would show the child is not biologically related to the other spouse in a same-sex relationship.

As a result, it is stands to reason that an unintended consequence of this ruling may be that now a paternity test, in and of itself, is no longer an appropriate dispositive method of rebutting the statutory presumption of paternity (if applying Obergefell) in a marriage between spouses of the opposite sex as the Court has made it clear that the standard in one case would have to be the same standard applied in the other case.

James L. Cork II is an Associate Attorney at From Smith & Gadow PC.  Mr. Cork has been practicing Family Law since 2008 and is Board Certified by the State Bar of Arizona as a specialist in the area of Family Law.  Mr. Cork has successfully represented hundreds of clients in Family Court matters including matters involving same-sex couples.  

Click Here To Send A Message Directly To James Cork: Family Law Attorney

You Can Also Call James Anytime @ 602-955-1515

This post is for informational purposes only. It is not intended, nor should it be construed as legal advice. No attorney-client relationship shall exist unless and until an agreement for legal services is reached between attorney and client, and a legal services contract is fully executed by and between attorney and client.

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