Family Law, Health Care / Medicine, Kids

Will This LGBT Custody Battle Inspire A New 'Hamilton' Song?

Courts continue to explore the intersection of marriage equality and parental rights.

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Obergefell—the Supreme Court decision recognizing the constitutional right for same-sex couples to marry, as well as to enjoy the “constellation of benefits” that come with marriage—was issued on June 26, 2015. Over two years later, courts are still elaborating on what Obergefell means when it comes to the children of same-sex couples.

Last week, the Arizona Supreme Court held that the female ex-spouse of another woman was eligible for parental rights over a child born during their marriage. The opinion was issued in McLaughlin v McLaughlin.

Familiar Facts. Like many similar cases, the McLaughlin matter involved artifacts of state law that existed before same-sex marriage was constitutionally protected. Suzan and Kimberly McLaughlin married in California in 2008 (before Proposition 8 was enacted there). In 2011, they moved to Arizona. At the time, same-sex marriage wasn’t legal in Arizona, but their marriage was retroactively recognized after Obergefell.

In hopes of conceiving a child, Suzan underwent artificial insemination, using sperm from an anonymous donor. When those efforts failed, Kimberly then tried artificial insemination. Her attempts were successful. During the pregnancy, the couple entered into a written co-parenting agreement, specifying that both women were intended to be parents to the child and that, in the event of divorce, both women would still have parental rights. (Smart. Good proactive thinking.) After the birth of child, Kimberly returned to her work as a physician, and Suzan stayed home to take care of the baby.

When the relationship soured a few years later, Kimberly took the child and moved out. Suzan filed for dissolution of the marriage, and sought to be recognized as a parent to the child. But Kimberly argued that Suzan was not a parent, noting that Suzan had no biological connection to the child, and there was no Arizona statute that presumptively gave a woman married to another woman parental rights over kids born during the marriage. Despite those facts, the trial court and appellate court both sided with Suzan, and confirmed her parental rights. Nevertheless, Kimberly appealed to Arizona’s Supreme Court.

Can A Woman Be A Father? Arizona law states that a man married to a woman who gives birth at least 10 months after their marriage is presumed to be the “father” of the child. See A.R.S. § 25-814(A)(1). You may have guessed that Kimberly argued that the statute could not be applied to Suzan because she is a woman and therefore cannot be a “father.” Seriously, Kimberly?

She further argued that the statute could not be read in a gender-neutral manner, because the statute took into account significant biological differences between men and women. She also apparently had complete amnesia as to the co-parenting agreement the two women signed together.

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What Would Alexander Hamilton Say? In a further attempt to stop the Court from interpreting the statute in a gender-neutral way, Kimberly argued that to do so would be to rewrite the statute and invade the legislature’s domain.

In response, the Court cited to Hamilton—the Treasury Secretary, not the musical—in countering this point: “the constitution is superior to any ordinary act or the legislature; and the constitution, and no such ordinary act, must govern the case to which they both apply.” I suspect Lin Manuel Miranda would agree. And write a new song, if we’re lucky.

The Arizona Supreme Court concluded that it would be patently unfair for a man, married to a woman who gives birth, to be presumed to be the parent, regardless of a biological connection to the child, while a woman under the same facts would not be. The Arizona Supreme Court further cited to Obergefell, noting the harms of denying same-sex couples “the recognition, stability, and predictability marriage offer” and finding that children “suffer the stigma of knowing their families are somehow lesser and suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life.” The court reasonably concluded that extending the marital presumption of parentage to same-sex couples mitigated these harms.

Dan Ziskin, an Arizona ART-law attorney, notes that “Arizona state statutes as well as the state Constitution require that state laws be read in a gender-neutral way.” Despite that, Ziskin noted it was good to see the same confirmed in case law.

Of course, the heartbreaking part is that the child at issue has been separated from one of his parents for four long years. Maybe the latest ruling will help protect another child from losing recognition of a parent while our country continues to struggle with equality. Just you wait. Just you wait.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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