In 2015 the U.S. Supreme Court struck down as violating the U.S. Constitution all state law bans on same sex marriages. That historic change continues to send shock waves across American family law. In February, the High Court let stand an Arizona Supreme Court ruling stating that in the divorce of two women, the one who isn’t the biological mother has the same rights as a man regarding the presumption of parenthood, as long as the child is born during the marriage.

By its decision not to take the appeal of Kimberly McLaughlin, the biological mother, the Court has indicated that rights to non-biological children should be determined in the same way in same sex marriages as it is in opposite sex marriages. Under Arizona law, as decided by the state’s highest court, Suzan McLaughlin, Kimberly’s spouse, is presumed to have parental rights over the child that Kimberly conceived through artificial insemination while the two were married.

The couple was married in 2008 and shortly thereafter started using artificial insemination with an anonymous sperm donor. Initially this was tried with Suzan, but the treatments were unsuccessful so Kimberly tried them next. She became pregnant and the couple signed a co-parenting agreement that gave Suzan the same rights, responsibilities and obligations of a biological parent. The child was born the following year and Suzan was a full time parent while Kimberly worked.

The relationship failed and just before the child’s second birthday, Kimberly moved out of the family home with the child, stopped all contact between the child and Suzan, and then filed for divorce. Under Arizona law, a man is presumed to be the father of a child if he and the mother “were married at any time in the ten months immediately preceding the birth.” But the law had never been applied to two women in the same situation. Whether or not Suzan has parental rights is key to her custody dispute with Kimberly.

The Arizona Supreme Court ruled the state’s law used to decide paternity should apply to women who have children in same-sex marriages just as it does to an opposite sex couple. New Jersey law states there’s a rebuttable presumption of paternity because of the parties’ legal relationship (marriage or its equivalent) if a child is born during a marriage or within 300 days of its termination. N.J.S.A. 9:17-43(a)(1). This presumption also includes when a husband consents to his wife being inseminated with donor sperm under the supervision of a licensed physician. N.J.S.A. 9:17-44(a).

The U.S. Supreme Court is putting into action its decision that family law, not just marriages and divorces, needs to be applied in the same way whether the married couple is of the same or opposite gender.

The McLaughlin case, after all the glare of publicity and time and cost of an appeal, will go back to the Arizona family court system where, unless the parties can reach an agreement, a judge will decide which parent gets what kind of custody. The appeal was about the ground rules of the custody dispute, not its outcome. As in New Jersey, a custody arrangement in this case will need to be seen by the presiding judge (or as decided by the parties themselves) as in the best interests of the child.

If you are considering a divorce and have concerns about child custody or co-parenting issues, whether in the same or opposite sex setting, please call the Central Jersey law offices of Hanan M. Isaacs, P.C., at 609-683-7400, or contact us online, for a near-term reduced fee initial consultation.  We will listen to your facts, explain the laws, and advise you about your best options to protect your legal rights and interests.  Call now.  You will be glad you did.