Same-Sex Divorce And Second-Parent Adoption In Arizona

The landscape of family law in Arizona and across the rest of the country has changed drastically over the past several decades. For members of the LGBTQ+ community, one of the most important Supreme Court cases was Obergefell v. Hodges in 2015. The Supreme Court’s ruling on this case made it legal for same-sex couples to get married everywhere in the United States. While this landmark case established a fundamental right for gay couples, there are still some issues that can arise surrounding child custody if that couple ever decides to file for divorce. If you are considering ending a same-sex marriage with someone with whom you share children, read on for more information on these issues. When you want to discuss how this all pertains to your unique situation with an experienced Arizona family law professional, call 480-680-9126. 

Establishing Paternity in Same-Sex Relationships

Without bringing up exceptions, same-sex couples won’t conceive their own children without some outside intervention. But there are plenty of ways for a woman to give birth while in a queer marital relationship. Typically, in Arizona, when a child is born during the marriage, the husband is automatically assumed to be the father, and paternity is established. You can find the other legal methods of establishing paternity in A.R.S. § 25-814. But this statute is still precisely worded to reflect a marriage (and a child) between a man and a woman. So, does the concept apply to spouses in same-sex marriages?

The Arizona Supreme Court ruled on this issue in 2017 in McLaughlin v. Jones. The court found that Obergefell did extend family law rights for same-sex couples beyond the realm of marriage. They ruled that a woman was still presumed to be the parent of a child born to another woman during a legal same-sex marriage. The birth mother was estopped from attempting to rebut that her ex was the child’s other legal parent. This case law now applies to all such situations across Arizona. However, this is the only way to establish paternity through Section 25-814 that was affected by Obergefell, as the other methods don’t involve the parents being legally married. 

Second-Parent Adoption

Whether a same-sex couple shares a child not born during the marriage, or wants extra security for a child when paternity has already been established, second-parent adoption can be an option. If the family ever moves to another state, second-parent adoption solidifies their family status, which other states might not otherwise recognize. The United States Constitution requires that all states recognize court-ordered issues and judgments, including adoption decrees, from all other states within the country. A second parent can adopt a child in Arizona without being married to the child’s other parent, but it complicates the process. There are procedures that make adoption faster for stepparents, regardless of gender, in Arizona. 

There are significant risks associated with a queer family not proceeding with a legalized second-parent adoption. The non-biological parent may have absolutely no rights if the parents break up before an adoption is finalized. If they weren’t legally married, the requirement to establish paternity isn’t met. That parent would need to use another legal theory to argue that they should have parental rights over the child. One of the most potentially useful legal strategies here is in loco parentis. This means someone is acting “in place of the parent.” It is used in family law cases to argue that someone besides a child’s biological parent has taken on a parental role in a child’s life and thus deserves custodial rights. The non-biological parent will need to prove that their continued relationship with the child is in the child’s best interest. You can find the factors that Arizona judges use to determine a child’s best interest in custody matters in A.R.S. § 25-403. This could also be relevant for step-parents and other unique family arrangements. 

Assisted Reproductive Technology Agreements and Documentation

Many same-sex couples turn to assisted reproductive technology to start or grow their families. Using donors can be a positive experience for all involved, but if things go awry, it’s best to have the proper agreements in place to avoid a worst-case scenario. If the couple goes through a clinic or another formal organization, that company will assist with the proper legal documentation to maintain a professional donor relationship. But some families choose more informal approaches through friends and other close loved ones. Here, it may be necessary to draft legal agreements to indicate the intended relationships between the parties and the child, if conceived. Some families will allow some form of relationship between a donor and the child, but others prefer to distance themselves to avoid confusing the child. Either way, a legal document should be produced in case it ever comes down to proving one party’s word against the other in a court of law. It can also be used to indicate who is to be responsible for certain medical costs relating to the child’s conception and birth. 

Other Tips for LGBTQ+ Family Law Disputes

• Document your role as a parent. If you aren’t your child’s biological parent, you could eventually have to prove your role in the child’s life. Written records and photographs can demonstrate this, as can financial records, school reports, medical records, and more. 
• Research before you assume how laws will apply to your family. When LGBTQ+ partners are married in Arizona, they can receive essentially equal treatment under family laws. This can all change simply by crossing a state boundary line. Families should research how their rights can change in different areas before traveling or moving. 
• Don’t rely on the birth certificate. Some families rely on paternity presumptions to legally form their families, but this can be risky for queer families. It is always safer to have the proper adoption or other legal mechanism in place. This removes the chance for an opposing party to use ambiguity to gain an advantage in custody litigation. 
• Consult with a family law attorney before any major changes. Family law matters are often far more complicated than people initially believe they will be. Many litigants think they are saving funds by representing themselves, but end up missing out on priceless time with their children while still being held liable for legal costs- potentially including their ex’s legal expenses, too. 

Every Family is Different. Hire an Attorney Who is Prepared for Any Situation.

Even with legal equality established, there are subtle nuances that go into litigating a same-sex divorce and child custody case that may catch some family law attorneys off-guard. But every family deserves a high-quality attorney when going through a legal dispute, no matter who they are. If you’re seeking a reliable and affordable family law firm with extensive experience representing all types of families in Arizona, look no further than AZ Family Law Lawyers. Our dedicated staff and attorneys work hard to deliver our clients the results they’re looking for during the hardest times of their lives. There is no greater investment you can make than in your own family. If you’re ready to start your family law case with a free consultation by phone, contact our firm today at 480-680-9126 for more information.