Despite the fact that same-sex couples have been able to legally wed throughout the country since 2015, divorce can still present some complications, particularly when there are children involved. One divorced lesbian couple has taken their custody battle to the U.S. Supreme Court.
The couple married in 2008 in California, where gay marriage was legal at the time. They used artificial insemination by an anonymous donor to conceive a child, whom one woman carried and gave birth to. They drew up a parenting agreement and wills that listed both of them as equal parents of the boy, who was born in 2011 in Arizona.
The birth mother continued working while her spouse stayed home to raise the child. When she left her spouse, however, she took the child with her. The other woman, in her divorce filing, sought visitation with the child, asserting that she should be treated as the woman’s “husband,” with the same right to parent the child as a husband would have under Arizona law. The Arizona Supreme Court agreed that she could make use of state law regarding paternity to get parental rights.
However, the birth mother and her attorney are arguing that the state law being cited refers to men in stating that husbands have the presumption of paternity.
The birth mother’s attorney says, “If this court or constituents are dissatisfied with the state of our current laws, the proper forum to advocate for change is in the legislature, not the courtroom.” He added that it is “beyond the Arizona Supreme Court’s domain to rewrite the statute in order to conform with any perceived public policy.”
The matter is more complicated here in Arizona than it would be in some other states because state law doesn’t address the legal parentage of husbands whose wives become pregnant through artificial insemination.
Whenever children are conceived or brought into a family through anything other than the “traditional” manner, parental rights can be a thorny legal issue if the couple later separates in a less-than-amicable manner. Experienced guidance from an Arizona family law attorney can help prevent problems if a couple divorces or help a parent protect his or her parental rights.
Source: Tucson.com, “Supreme Court asked to rule in divorced gay couple’s child custody case,” Howard Fischer, Capitol Media Services, Jan. 17, 2018