Parenting Law Applied Gender-Neutral in Arizona

BY ARTHUR S. LEONARD | The Court of Appeals of Arizona, an intermediate appellate bench, has ruled that the state’s paternity statute must be construed in a gender-neutral way so that the same-sex spouse of a woman who gives birth enjoys the presumption of parental status. Judge Philip Espinosa’s October 11 opinion for a unanimous three-judge panel cited last year’s US Supreme Court ruling giving same-sex couples the right to marry.

Kimberly and Suzan, legally married in California in October 2008, shortly before voters approved Proposition 8, “agreed to have a child through artificial insemination using an anonymous sperm donor,” Espinosa wrote. Suzan’s efforts to conceive this way were unsuccessful, but Kimberly became pregnant in 2010. Before their child was born, the women moved to Arizona, a state that did not then recognize their marriage or allow second-parent adoptions.

The women made a joint parenting agreement and executed mirror-image wills, declaring “they were to be equal parents of the child Kimberly was carrying,” wrote the court. After their son was born in June 2011, Suzan was the stay-at-home mom while Kimberly resumed her work as a physician. The women’s relationship deteriorated, however, and when their son was almost two years old, Kimberly moved out of their home, taking the child with her and cutting off his contact with Suzan.

Court says lesbian spouse of bio mother is presumptive mom

Suzan’s 2013 efforts to dissolve the marriage and have her parental status recognized were put on hold by Superior Court Judge Lori Jones in Pima County given pending marriage equality litigation. This past January, six months after the Supreme Court’s marriage ruling, Kimberly moved to set the case for trial, and three months later Judge Jones ruled that, under the 14th Amendment Suzan must be afforded the same presumption of parenthood that a husband would enjoy. The case, she ordered, should proceed as a “dissolution action with children.”

Jones next rejected Kimberly’s bid to introduce evidence to rebut that parental presumption, pointing to an Arizona statute under which artificial insemination “necessarily gives rise to parental rights in the non-biological spouse.”

Kimberly appealed this ruling, arguing that the paternity statute should not apply to same-sex lesbian couples. Suzan, in response, argued that because of last year’s marriage equality ruling, parentage statutes, in Espinosa’s words, “must be applied and interpreted in a gender-neutral manner so that same-sex couples’ fundamental marital rights are not restricted and they are afforded the same benefits of marriage as heterosexual couples and on the same terms.”

Espinosa’s ruling found that interpreting the Supreme Court’s ruling mandates that the paternity statute be interpreted in a gender-neutral way and that doing so is not in conflict with the “purpose and policy” behind it.

Espinosa wrote, “The word ‘paternity’ therefore signifies more than biologically established paternity. It encompasses the notion of parenthood, including parenthood voluntarily established without regard to biology.” The purpose of paternity statutes, he pointed out, is “to provide financial support for the child of the natural parent,’ and the marital presumption “is intended to assure that two parents will be required to provide support for a child born during the marriage,” and serves the additional purpose “or preserving the family unit.”

The Court of Appeals found that Kimberly’s effort to rebut the presumption of parenthood is blocked by the principal of equitable estoppel, which applies when one party engages in acts inconsistent with a position later adopted and the other party justifiably relies on the earlier acts and, as a result, is “injured.”

In this case, the uncontested facts are that the women were lawfully married when Kimberly became pregnant as a result of a donor insemination process upon which both women agreed; their son was born during the marriage; Suzan was the stay-at-home mom and cared for their son until Kimberly “left the home with him.” In addition, the women made a written parenting agreement providing that they were to be equal parents of the child, and Kimberly agreed to “waive any constitutional, federal, or state law that provide her with a greater right to custody and visitation than that enjoyed by Suzan.” They even provided in the agreement that if their relationship broke down, Suzan would continue to enjoy parenting rights, and if second-parent adoption became available (which it had not in Arizona when the couple broke up), Suzan would adopt the child.

The court concluded that based on these uncontested facts, equitable estoppel barred Kimberly from attempting to rebut the presumption that Suzan is a parent to their son.

The case now goes back to Judge Jones as a dissolution with a child. Jones must determine whether it is in the best interest of the child to order Kimberly to allow Suzan to have a continuing parental relationship with the boy.

Kimberly is represented by Phoenix attorneys Keith Berkshire and Megan Lankford. Suzan is represented by Campbell Law Group in Phoenix and attorneys from the National Center for Lesbian Rights in San Francisco.