Arizona marital presumption of paternity statute is gender-specific, applies only to men, and cannot be rewritten by the court to apply to women; there is no legal presumption favoring a female spouse who is neither biologically connected nor the adoptive parent in women’s same-sex marriage.
Turner v. Hon. R.K. Steiner/Oakley
Temporary Child Custody Orders Are for Legal Parents
Following reconsideration, the family court ruled that the Arizona marital presumption of paternity statute applies in a same sex marriage between women. Reversed on appeal.
In 2013, the mother started artificial insemination (AI) treatments. The AI documents indicated that “if a child born ‘to husband and wife, such child … is considered their own.’” The parties, both women, married in 2014. The mother gave birth to a child in September 2015. The other spouse was closely involved with the AI procedures, was present at the child’s birth, and was listed on the birth certificate as “father,” but did not legally adopt the child. In May 2016, the mother petitioned for divorce with a child “born of the marriage.”
Mother Sought Sole Custody, Child Support, and Supervised Visitation for Her Spouse
The mother sought sole custody, child support, and supervised visitation for the other party. Petitioner’s subsequent pleading asserted that the other spouse was neither the natural or adoptive parent and, thus, had no legal rights to temporary legal decision-making or parenting time. At the temporary orders hearing, the other party asserted she was presumed to be the child’s legal parent pursuant to ARS § 25-814(A)(1), known as the marital presumption of paternity statute. The court ruled for the mother as sole legal parent and granted supervised visitation to the other spouse who then motioned for reconsideration.
Shortly thereafter, another panel of the Arizona Court of Appeals held ARS § 25-814(A)(1) “must be read and applied gender-neutrally” to allow a presumption of parentage in a marriage between women. McLaughlin v. Jones, 240 Ariz. 560, 382 P.3d 118 (Ariz. Ct. App. 2016) rev. granted April 18, 2017.
Granting reconsideration in light of McLaughlin, the family court ruled that the other party was a presumed parent. At an evidentiary hearing, the mother was equitably estopped from rebutting the presumption because evidence showed the women “intended to raise the child together as co-parents.” The mother petitioned for special action review which the Court of Appeals granted.
Arizona Marital Presumption of Paternity Is Gender-Specific
Arizona’s marital presumption of paternity statute is in ARS § 25-814(A), as follows:
A. A man is presumed to be the father of the child if:
1. He and the mother of the child were married at any time in the 10 months immediately preceding the birth or the child is born within 10 months after the marriage is terminated by death, annulment, declaration of invalidity or dissolution of marriage or after the court enters a decree of legal separation.
2. Genetic testing affirms at least a 95% probability of paternity.
3. A birth certificate is signed by the mother and father of a child born out of wedlock.
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.
Basic Biology Behind Arizona Maternity and Paternity Proceedings
In the appellate court’s analysis, the family court erred by extending the marital paternity presumption to a female in order to make her a legal parent. By definition, the facts prevented legal parentage under ARS § 25-401(4) which provides that:
“Legal parent” means a biological or adoptive parent whose parental rights have not been terminated. Legal parent does not include a person whose paternity has not been established pursuant to § 25-812 [voluntary acknowledgement of paternity] or § 25-814 [presumption of paternity].
Examining the legislative intent behind the marital presumption of paternity, the appeals court held the statute clearly and unambiguously applies solely to men and is gender-specific. Arizona’s statutory scheme relates to “Maternity and Paternity Proceedings” and the ordinary, gender-specific meaning of those terms should apply. The ordinary meaning of paternity is the “fact or condition of being a father” and the ordinary meaning of father is the “male parent of a child.”
Rejecting the argument that the U.S. Supreme Court’s decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015) (giving full faith and credit to same-sex marriages performed in other states) should extend to same-sex parenting, this Court of Appeals determined that to apply gender-neutrality would disrupt Arizona’s statutory scheme.
Furthermore, parentage is determined by biology and it is biology that forms the basis of the marital presumption of paternity. There is no presumption of maternity statute in Arizona law because determining the biological mother of a child is not generally difficult. Birth of a child, however, does not reveal the identity of the biological father. For that reason, Arizona has a marital presumption of paternity statute that helps prove biological parenthood.
Legal Presumption Is Rebuttable with Clear and Convincing Evidence
The marital presumption of paternity is rebuttable with clear and convincing evidence. Interpreting the male-specific paternity presumption as gender-neutral would not change the fact that the other spouse is not biologically related to the child. The mother will always defeat the presumption. Given that the court is not at liberty to rewrite the statute, the remedy “lies not with the courts, but with the Legislature.”
After further analysis, the Court of Appeals reversed the family court’s decision, respectfully disagreeing with the other appellate panel’s decision in McLaughlin.
Turner v. Hon. R.K. Steiner/Oakley, 1 CA-SA 17-0028 (Ariz. Ct. App. June 22, 2017)
For precise language, read the court’s original opinion. Legal citations omitted.
Read our discussion on paternity establishment in Arizona to learn more about voluntary acknowledgement and the presumption of paternity in marriage. Some fathers may feel more comfortable recruiting a male divorce lawyer for matters of paternity establishment and fathers rights.