By Melissa Myers and Michael J. Tucker, May 2017 Web Exclusive.
Michael J. Tucker: Our special guest this month is longtime Valley family law attorney and Echo Magazine Hall of Fame inductee Claudia Work. I have invited Claudia to give us the lowdown on what’s new in Arizona family law for same-sex parents.
Claudia Work: Thanks, Michael. The main issue on the front burner these days is that many of the same-sex couples are getting married, or breaking up, and not following through with memorializing their parental rights as to each other’s children.
Tucker: What do you mean? Marriage doesn’t necessarily create a legal relationship between someone and their spouse’s children.
Work: Right. If a couple had or adopted a child before marriage, and only one is a biological or adoptive parent, then Arizona law treats that child as having a single parent. Being a step-parent only rarely – and indirectly – gives any rights to parenting time or other rights in the event the marriage ends in divorce.
Tucker: What about couples who are already legally married and then adopt children?
Work: Adopted children are a special situation: If only one spouse adopted because Arizona law did not allow them both to, then only one is a legal parent and they need a “step-parent” adoption to protect the whole family.
Tucker: What about couples who are already legally married and then give birth to children? I hear that the state is putting both wives on the birth certificate.
Work: Can I scream this response so everyone hears?
Tucker: We’re in print right now, so ALL CAPS is always an option.
Work: Birth certificates are nice to have, but they don’t give anyone other than the woman who gave birth any legal status.
Tucker: You’re saying that the birth certificate is an official indicator of parental status but that it doesn’t legally prove that someone is a parent.
Work: Right, only a court order does that. And we are still living in uncertain times in Arizona. For instance, the reason that wives are getting their names on the birth certificates of children born during the marriage to their wives is because of something called “the marital presumption” that presumes a “husband” is the second legal parent of a child born to the woman who gives birth.
Tucker: Wait, what?
Work: Well, that plus one of my cases that says you have to give lesbian wives the same presumption.
Tucker: So a “presumption” is subject to attack, correct? And it’s subject to actual proof that the spouse is not the actual second parent?
Work: Generally, yes, up to the moment a court order is entered during a divorce, adoption or some other court action.
Tucker: And some litigants out there are still actively trying to make sure that children born to married same-sex couples are not protected by the marital presumption.
Work: Right, because they have decided that their children’s other mother must be punished, so everyone else’s children should be harmed in the process.
Work: So, until a final court order comes out to put these issues to bed, even divorce court orders are not as safe as our families deserve.
Tucker: What is the best practice here?
Work: Even if the co-parent is legally married to the child’s natural parent or adopting parent, the ultimate legal protection of the co-parent’s actual role as a parent is to initiate a “step-parent” adoption proceeding and obtain a court order of adoption.
Tucker: That way, if the marriage breaks up, the ex-spouses can’t effectively use their differing parental status as a weapon against each other.
Work: Now you’re getting the idea. As an added bonus, an adoption ensures that any egg or sperm donor cannot come back later and try to prove they are a parent also.
Tucker: What if the couple isn’t married and a second-parent adoption is desirable?
Work: Unlike in many other states, two unmarried people cannot adopt together in Arizona.
Tucker: So, depending on how badly they want to protect the child, they might want to think about marrying so that they can do the step-parent adoption in Arizona.
Work: Yes. Remember, marriage doesn’t mean you have to live together!
Tucker: So if the couple isn’t married to one another, and doesn’t want to marry just to protect their child, they’d have to pursue a second-parent adoption in some other state according to that state’s laws.
Work: Pretty much.
Tucker: Can we talk about which jurisdictions unmarried couples from Arizona can go to if they want to initiate a second-parent adoption?
Work: That’s a complicated response, and definitely requires a face-to-face discussion!
Editor’s Note: This material has been provided for general informational purposes only and does not constitute either tax or legal advice. Investors should consult a tax or legal professional regarding their individual situation. Neither Camelback nor Commonwealth offers tax or legal advice.