Same-Sex Arizona Mom Loses Custody Fight

PHOENIX (CN) — The former wife of a woman who gave birth through artificial insemination cannot claim legal guardianship of the child now that their divorce is final, the Arizona Court of Appeals said in a split ruling.

Heather Turner became pregnant in September 2015, after which she and her wife, Liza Oakley, drafted a will that gave Oakley custody of the child if Turner were to die. Outside of listing Oakley on the child’s birth certificate, there were no other written agreements regarding the child’s parentage, according to the June 22 opinion.

When Turner and Oakley filed for divorce in May 2016, Oakley’s standing in the family became unclear, as Turner asked the courts for sole custody of the child.

The Maricopa County Superior Court found that Oakley was the presumed parent of the child, after ruling favorably in a similar artificial insemination case. Turner appealed, and the Arizona Court of Appeals reversed in a 2-1 ruling.

“We sympathize with Oakley’s desire to legally establish that she is C.T.’s parent alongside Turner and recognize that this issue will recur in other cases with increasing frequency,” Presiding Judge Randall Howe wrote for the court.

“We also understand C.T.’s need — and the need of every child affected by this issue — to have permanent and stable parental relationships. But the paternity statutes as they are currently written provide no remedy to Oakley, and we cannot rewrite the statutes to do so, no matter how laudable that outcome might be as a matter of public policy.”

Oakley argued that Arizona law defines a parent as “a biological or adoptive parent whose parental rights have not been terminated.” But Judge Jon Thompson joined Howe in rejecting the argument. Judge Lawrence Winthrop dissented.

Howe wrote: “Here, the statute’s language clearly and unambiguously provides that it applies solely to men. The statute creates a presumption of ‘paternity.’ ‘Paternity’ means ‘the fact or condition of being a father.’”

Oakley also argued that Arizona law says a parent “does not include a person whose paternity has not been established pursuant … voluntary acknowledgment or … presumption of paternity.”

But the court found that that provision applied to situation of a male parent.

“That sentence merely means that a man does not come within the definition of ‘legal parent’ unless paternity has been established by (1) voluntarily acknowledging paternity …  or (2) proving the existence of a presumption of paternity and withstanding any attempt to rebut that presumption. … It does not create a third way to establish parentage.”

Winthrop, in dissent, said that Arizona’s presumption of paternity statute requires a “gender-neutral interpretation” in light of the 2015 U.S. Supreme Court decision legalizing gay marriage.

“A gender-neutral interpretation of the statute allows courts to apply the presumption of paternity to females such as Oakley, who are ‘married [to the mother of the child] at any time in the ten months immediately preceding the birth,’” Winthrop wrote. (Brackets in ruling.)

Winthrop said the Supreme Court has “recognized that ensuring same-sex couples have the right to marry provides ‘profound benefits’ to the ‘hundreds of thousands of children [that] are presently being raised by such couples.’”

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