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State courts conflicted on same-sex parents

Arizona child custody disputes are often complex and may be more difficult when they involve the rights of same-sex couples. State courts are reviewing an Arizona law granting parental rights to a male father and presuming that the male was the biological parent if the couple was married with 10 months of the child's birth.

However, this law may conflict with a landmark 2015 U.S. Supreme Court ruling validating the rights of same-sex couples to marry. The Court ruled that all states must recognize this right.

In June, the state Court of Appeals ruled that an ex-wife of a woman who gave birth through artificial insemination cannot be the legal parent of the child and reversed a lower court's ruling that gave her parental rights. The Arizona state Supreme Court may ultimately issue the final ruling as it rules on another case where a lower court gave these rights to a same-sex spouse.

The couple married in 2014. The mother gave birth to a child conceived through artificial insemination in fall 2015. The other spouse was listed by the mother as the father on the birth certificate. Neither spouse sought an adoption so that the other spouse could obtain parental rights. When a divorce was sought, the mother argued that the other spouse could not assert rights to decision-making for the child or parenting time.

The court ruled that the woman did not have parental rights even though she was listed as the father on the birth certificate and that it may not rewrite this law to be a gender-neutral statute. Even if the law was gender-neutral, according to the court, the spouse seeking custody has no parental rights because she is not the child's biological parent.

In another case, the state Supreme Court heard arguments in late June involving two women who were legally married when one of the spouse gave birth to a child through artificial insemination. They later separated. The case is an appeal of another appeals court which, six months ago, gave parental rights to the spouse who did not give birth.

Until these issues are resolved, parents should seek legal advice to help protect their rights and avoid disputes. An experienced attorney may assist parents with considering options that withstand appeals.

Source: White Mountain Independent, "Arizona Court of Appeals ruling possible setback for gay rights," By Howard Fischer, Capital Media Services, June 27, 2017

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