We have discussed many instances of same-sex parents who have seen challenges to their parental rights because of gaps in current state laws. When the U.S. Supreme Court legalized same-sex marriage across the country, it changed the way that states interpreted laws regarding marriage. These changes have had a major impact for many couples, and have led to uncertainty about custody when relationships come to an end.
A recent case out of Arizona again emphasizes the challenges that face same-sex parents. This case involves two women who were married in California, where gay marriage was legal, and then moved to Arizona, where the courts had not yet recognized such marriages.
The couple decided to start a family, with one of the women using artificial insemination to become pregnant. Before the child was born, the couple had paperwork drafted that discussed their parental rights. They said that each parent would have the same rights.
When the child was born, the spouse that did not give birth stayed at home to care for the child. The other parent worked full-time to support the family. At some point, the marriage fell apart. The mother who gave birth took the child and moved out of the house, attempting to cut off the other's access.
In 2016, the Arizona Court of Appeals ruled that the non-birth mother should have parental rights in this case. They believed that everything the couple had done prior to that point indicated that both parents were to play an equal role in the child's life. They also held that the U.S. Supreme Court ruling required the court to read laws regarding parentage to apply to same-sex couples, even though they were written to apply to traditional marriages.
The law at issue in this case involves the assumed parentage of a man married to a woman within 10 months of a child being born. The child's birth mother says that this law is being unfairly applied in her case, because if she was in a traditional marriage, she would have the opportunity to contest the man's parentage even if they were married within the 10 month timeframe.
She could introduce evidence that would have the man's parental rights terminated. The courts in Arizona do not give her this right against her partner in her current case. The state supreme court is being asked to issue a definitive ruling about the application of this law to same-sex marriages.
As you can see, even when a couple takes all appropriate steps to prevent problems from arising, serious legal issues can still happen all too easily. If you and your partner are considering starting a family, you should talk to an experienced assisted reproduction law attorney to ensure that your parental rights are protected in the event the marriage does not work out.