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Arizona Supreme Court reviews rights same-sex parental rights

The U.S. Supreme Court's ruling validating same-sex marriages did not resolve many family law issues such as child custody. The Arizona Supreme Court, for example, recently heard arguments over whether a gay woman undergoing divorce has the same parenthood rights as a man when the child was born during the couple's marriage.

Arizona law provides that a man is presumed to be the parent when his wife gives birth within 10 months of their marriage even if the child was born through artificial insemination. A divorced father may have custody and visitation rights without being linked biologically to the child.

However, an attorney for the spouse in a same-sex marriage argued before the state Supreme Court last month that her client should have the same rights as the mother of the child and her former spouse. She relied on the U.S. Supreme Court's 2015 ruling that couples may not lose the right to marriage's benefits and privileges because they are a same-sex couple.

Last month, the U.S. Supreme Court also invalidated laws in another state that limited the birth certificate's designation of the father to a man even when the child was conceived through artificial insemination. It ruled that there was no legal reason to prohibit a same-sex woman from having the same rights as a woman who gave birth.

The Arizona case involves a couple who were legally married in California in 2008. They agreed to have a child through artificial insemination through an anonymous sperm donor. The mother became pregnant in 2010.

The couple moved to Tucson before the child was born. They entered a joint parenting agreement and executed similar wills declaring that they would be equal parents.

One spouse stayed home and cared for the child, while the spouse who bore the child practiced medicine. The physician moved out with the child when he was almost two. She prevented contact with the other spouse who filed for divorce in 2013 and sought parenting time. A trial judge granted this request and the other spouse appealed.

The state Supreme Court justices expressed concern that Arizona law could be rewritten because it refers to the husband as a man. The attorney for the spouse seeking parental rights argued that the law should be interpreted in a gender-neutral manner.

Legal custody may be complex. An attorney can help parents assert their rights in these cases.

Source: Arizona Daily Star, "Arizona Supreme Court hears arguments on same-sex parental rights," Howard Fischer, June 27, 2017

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