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State Supreme Court to hear same-sex child custody case

As more same-sex couples in Arizona marry and have children, new issues arise should they later divorce. One such issue has made it all the way to the Arizona Supreme Court. The court will hear a case that will determine whether a woman's wife will have the same child custody rights she would have if she were male.

In this case, in 2011 the woman gave birth to a son. She and her wife had previously married in another state in 2008. The child was born via artificial insemination. The identity of the sperm donor was kept anonymous. While the woman was still pregnant, she and her wife moved to Arizona. There, they drafted a joint parenting agreement stating that they decided that each of them would have equal rights to the child. After the child was born, the woman returned to the workforce as a doctor, and her wife -- who had not given birth to the child -- became a stay-at-home mom.

However, when the child was almost two years old, the woman moved with the child and the woman's wife was no longer granted any contact with the child. In 2013, the woman's wife filed for divorce and also submitted a motion for parenting time, which her ex appealed.

The woman's lawyer argues that Arizona law has not been changed in a manner that would give a married same-sex parent who was not the biological parent of the child the same rights that a husband in a opposite-sex marriage would have. Moreover, the woman's lawyer argued that under Arizona law, a biological mother has the right to show that, through DNA evidence, that her husband is not actually the child's biological parent and therefore should not have rights to the child.

However, the Court of Appeals determined that laws that presume the parentage of the child is automatically the husband if a couple is married are applicable to same-sex spouses. To say otherwise would deprive same-sex married couples of the legal rights enjoyed by opposite-sex couples.

It remains to be seen how this case will play out. However, it brings up some interesting issues surrounding same-sex marriage and parenting rights. Those who have questions about this case and how it may affect them may want to seek the advice of an attorney.

Source: Tucson.com, "Arizona Supreme Court to decide parental-rights case of same-sex Tucson couple," Howard Fischer, April 19, 2017

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