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Co-Parenting Rights of LGBT Couples Upheld in Arizona

Arizona’s highest court on Tuesday ruled one half of a divorced lesbian couple has constitutionally guaranteed equal parental rights, even though she didn’t give birth to the child the couple had while together.

(CN) – Arizona’s highest court on Tuesday ruled one half of a divorced lesbian couple has constitutionally guaranteed equal parental rights, even though she didn’t give birth to the child the couple had while together.

The Arizona Supreme Court said same-sex couples not only have the same right to marry as straight couples thanks to recent U.S. Supreme Court decisions, they are also privy to the “same constellation of benefits.”

“For these reasons, we extend (these parental rights) to same-sex spouses such as Suzan,” Chief Justice Scott Bales wrote for the majority. “By extending (these parental rights) to same-sex spouses, we ensure all children, and not just children born to opposite-sex spouses, have financial and emotional support from two parents and strong family units.”

Suzan McLaughlin married Kimberly McLaughlin in California in 2008. The couple later opted to have a child and, after unsuccessful attempts by Suzan, Kimberly became pregnant and gave birth to a baby boy in 2011.

The couple entered into a co-parenting agreement that same year. But two years later the couple divorced, and Suzan filed for certain parental rights that Kimberly sought to deny.

A lower state court granted Suzan the parental rights she sought, a decision overturned on appeal. Suzan then brought the case before the state Supreme Court in one of Arizona’s most closely watched cases.

In the majority opinion, Bales noted biological parentage is not necessary for a male partner to have legal paternity rights under state law – meaning the court should see no difference in the case of same-sex couples.

“If a woman in an opposite-sex marriage conceives a child through an anonymous sperm donor, her husband will be presumed the father even though he is not biologically related to the child,” the chief justice wrote. “It would be inconsistent with Obergefell to conclude that same-sex couples can legally marry but states can then deny them the same benefits of marriage afforded opposite-sex couples.”

Obergefell v. Hodges is the landmark civil rights case in which the U.S. Supreme Court ruled the fundamental right to marry is guaranteed same-sex couples under the Equal Protection Due Process clauses of the 14th Amendment.

Ever since that decision was handed down in 2015, state courts have tackled a raft of issues in connection with the legalization of same-sex marriage, including parental rights.

Bales said the backbone of Arizona law relating to parental rights deals with ensuring adequate financial support from two parents, and that law should extend to same-sex marriages as well.

“Extending the presumption, on the other hand, would better ensure that all children – whether born to same-sex or opposite-sex spouses – are not impoverished,” he wrote.

Furthermore, the law also promotes the integrity of the family unit – something that should apply to both straight and same-sex marriages, Bales wrote.

Not all the justices agreed, however.

Justice Clint Bolick said the issue should be treated as a “marital dissolution with child” case, but that the majority had overstepped its bounds.

“With great respect, however, I cannot join the majority in rewriting our state’s paternity statute, which is unnecessary, unwise, and beyond the proper scope of judicial power,” Bolick wrote, saying much of the decision ought to have been left to the Arizona Legislature.

Bolick focused on Arizona state law and whether paternity is based on biology or a marriage certificate, but all seven judges agreed Suzan did have parental rights to her son.

“Suzan and Kimberly were a legally married couple when their baby was born,” Bolick wrote. “Not only did they execute a co-parenting agreement in times that were happier between them, but Suzan rather than Kimberly would have been the birth mother had she been able to conceive through artificial insemination, which would have reversed the present circumstances.”

The state’s highest court also had some harsh words for the Republican-dominated Arizona Legislature, which has refused to update hundreds of state statutes that refer to marriage as exclusively between a man and a woman – in violation of federal law.

“Through legislative enactments and rulemaking, our coordinate branches of government can forestall unnecessary litigation and help ensure that Arizona law guarantees same-sex spouses the dignity and equality the Constitution requires – namely, the same benefits afforded couples in opposite-sex marriages,” Bales wrote in the majority opinion.

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