By Claudia D. Work, December 2017 Issue.
By now, many of you have heard something about the biggest thing to happen for the Arizona LGBTQ community since Arizona’s Oct. 17, 2014, marriage equality ruling.
In McLaughlin vs. Jones, the Arizona Supreme Court acknowledged that children born during a same-sex marriage, or within a 10-month window before or after the marriage, are entitled to the legal presumption that the wife of the woman who gave birth is the other legal parent. And if the spouses planned or agreed to be co-parents of the child, the birth mother can be prevented from presenting evidence that her wife is not the biological parent in order to prevent her wife from having rights of custody and parenting time.
In this case, the former couple was married in 2008, and decided soon after to start a family. Using an anonymous sperm donor, Kimberly became pregnant and gave birth in 2011. They treated the child as their joint son and even signed documents to protect the family. Suzan stayed at home to take care of their son for two years until Kimberly took their son and cut off all contact, claiming Suzan had no rights.
From there, it took almost four years and a trip to the Supreme Court to settle not only Suzan’s parental rights, but the rights of thousands of Arizona women and men in similar positions.
This is going to get annoying, so I will put it up front in case you stop reading: Everyone needs either a court order of adoption or parentage to protect your family.
What does this case mean for my family?
Does this mean you are absolutely the legal parent of the child your wife gave birth to? The answer is a resounding, “probably.’ Every family is different.
The McLaughlin decision is a logical reading of existing law treating husbands as legal fathers of children born during the marriage, even if it’s obvious to the outside world that they are not biologically related. It is very hard, but not impossible, to remove a husband (and now a wife) from a birth certificate. Even if a biological father tries to claim the child, the court must consider the interests of the child in maintaining the parents who have been raising them.
Where the wife wants to prove her spouse is not a biological parent and the biological father is not stepping up, the court almost always rules to allow the spouse to remain the legal parent, even preventing the wife from presenting contrary evidence
If you and your wife used anonymous donor sperm, then the odds of a court declaring that you are not a legal parent are low. But that is if you end up in court in Arizona, such as in a divorce. No one thinks it will happen to them, but there are many biological mothers out there who will try to take any advantage they can to keep you, their loving co-parent, away from your child following your break up. You could even end up divorcing in a state that has laws allowing anyone to prove their spouse is not a parent by flashing a DNA test.
However, a confirmatory “stepparent” adoption now will prevent anyone from declaring you are not a parent in the future, no matter where your family ends up.
And, if you used a known donor or that guy from Craigslist whose name you forgot, then you absolutely need to do a “stepparent” adoption to terminate his rights and name you the only second parent.
What if we divorced before I knew I was a legal parent?
Consult with a knowledgeable attorney who regularly works with the community. In many cases, you can reopen your case to have the Court declare you a legal parent to your ex-spouse’s child born during the marriage.
What if I’m on the birth certificate already?
Vital statistics in Arizona started putting married lesbians on the birth certificates of children born during the marriage in early 2015, because of a law that makes them put anyone the woman is married to on the birth certificate. Until recently, those certificates listed the wife as “father,” and the only way to change it was by court order. Whether you are listed as the “father” or are one of the lucky ones who are listed as “parent,” the birth certificate is only a presumption and does not mean you can’t be kicked off in the future if a known donor steps forward or your wife argues you aren’t a parent. Again, the only real protection for your family is to do a “stepparent” adoption.
One (or both) of us adopted our child, does that mean we’re protected?
McLaughlin only applies to biological children. If only one of you adopted before Arizona recognized your marriage, you are not the other legal parent unless you too adopt. And worse, you are in danger of completely losing your child if you and the legal parent divorce. EVERY, and I mean every, married person who is acting as a parent to a child his or her spouse adopted absolutely needs to do a “stepparent” adoption.