Parenting in a Same Sex Divorce

In Arizona, the presumption with respect to paternity is that a man is presumed to be the father of the child if he and the child’s mother were married at any time within 10 months immediately preceding the birth of the child.

In September of 2017, the Supreme Court of Arizona in McLaughlin v. Jones made it clear that this same presumption governs same-sex marriages:

“To deny a parental presumption to same-sex spouses would perpetuate

this unconstitutional stigma. Thus, the perception must apply equally to all married couples, whether gay or straight. A birth mother’s wife must

immediately be recognized as her child’s legal parent.”

In McLaughlin, a child of a lesbian married couple was initially deemed to not be the child of the non-biological parent, even though the parties were married at the time of the child’s birth. This meant that, even though the marriage itself was valid under Obergefell, the child born during the marriage was not presumed to be the non-biological parent’s.

Under the McLaughlin ruling, this case and others following will now proceed through litigation just as any other divorcing couple’s would, with the presumption of parentage in place provided the couple was married at or immediately preceding the time of birth. This means the same rights and responsibilities that come with parenting are automatically established based on marriage, regardless if it is a same-sex or an opposite-sex couple.

The guiding principle is what is in the best interests of the child, and the presumption is that a child with two parents is best, provided the parents are fit and stable. The gender-neutral reading of Arizona law by the Arizona Supreme Court ensures that both parents are automatically given the legal right to parent, regardless of biology.

Marriage comes with challenges and does not always work out. Parenting time and legal decision-making as it relates to divorce can be complicated across the board, regardless of the parents’ sexual orientation, and these issues must be settled as part of the divorce process.

If you find yourself, a friend or a loved one in need of legal assistance and you would like to work with one of our experienced Attorneys, please call OWENS & PERKINS at (480) 994-8824 to schedule your free 30-minute consultation.