How Does The Court Determine Paternity When Parents Are The Same Sex?

Laws regarding same-sex parents are just now beginning to come into focus, particularly when the question of parenthood comes up.

Arizona has long had statutes that automatically presume paternity when there are one of four specific scenarios at work. When a child’s legal parent is in question, these four situations determine who is legally considered the child’s parent.

This can be challenged though. The challenger must prove by clear and convincing evidence that the presumed Father is not the biological Father of the child.

Scenario 1

The presumed father and the mother of the child were married at any time the child was born or within 10 months of the child’s birth. For example, if the parents divorced 10 months before the birth, the presumption still applies. Additionally, if the parents divorced one month after the birth, the presumption also applies.

Scenario 2

Genetic testing affirms at least a 95 percent probability of paternity.

Scenario 3

A birth certificate is signed by the mother and father of a child born out of wedlock.

Scenario 4

A notarized or witnessed statement is signed by both parents acknowledging paternity or separate substantially similar notarized or witnessed statements are signed by both parents acknowledging paternity.

The language of the statute governing this presumption, A.R.S. §25-814(A) is expressly directed at males and the male spouses. Additionally, there is no corresponding statute outlining a presumption of maternity, for example.

When Paternity Means Parenthood

Thus, when the U.S. Supreme Court legalized same-sex marriage in the Obergefell case, a debate began about whether the presumption of paternity should be more broadly interpreted to mean a presumption of parenthood.

This topic was particularly important to same-sex parents because it is not possible for both spouses to be biological parents.   That means that the non-adopted children of same-sex parents are only biologically related to one of the parents.

If the statute were interpreted to same-sex couples, the presumption would tend to protect the non-biological parent spouse.

What The Courts Say About Same-Sex Parents

The Arizona Court of Appeals recently ruled on this issue in the 2016 McLaughlin case. In that case, two women who married in California prior to the Obergefell case, later moved to Arizona. After arriving in Arizona, the women had a child through artificial insemination. After the birth, the women executed identical wills and a joint parenting agreement declaring both were equal parents to the child.

The women eventually filed for divorce.  The biological Mother then sought to prevent her ex-spouse from exercising rights as a parent of the child. The Arizona Supreme Court found that Obergefell mandates that the presumption of paternity statute be applied to same-sex parents.

Thus, the Court held that the non-biological spouse was entitled to the presumption of maternity under the statute.

The Court would have let the biological Mother rebut the legal presumption of maternity if the agreement had not been signed by both parents.

If the Mother had not made the joint agreement, the Court would not have barred her from changing her position. This is a key to the outcome of this case. Without a way to prevent rebuttal, the presumption of maternity to the non-genetic spouse would be meaningless.