Arizona Court Hears Who Has Child Custody Rights When A Same-Sex Marriage Dissolves

By Holliday Moore
Published: Tuesday, June 27, 2017 - 1:50pm
Updated: Tuesday, June 27, 2017 - 1:52pm

Arizona’s Supreme Court is set to hear a case Tuesday involving a gay couple and their parental rights after a divorce.

The hearing follows a lower court of appeals decision that granted Suzan McLaughlin the same parental rights over her adopted child as her former spouse Kimberly McLaughlin.

Through artificial insemination, the couple planned and Kimberly carried the child to term.  She has asked a court to reverse its decision allowing Suzan parental rights claiming she is not a “parent” based on current Arizona law, which do not protect non-biological parents in same-sex divorce cases.

On Monday, however, the U.S. Supreme Court extended its landmark 2015 case recognizing same-sex marriages to include the same set of benefits afforded heterosexual families.

That decision could give gay rights advocates a chance to void similar laws favoring opposite-sex marriages, including one giving adoption preferences to heterosexual couples.

Maricopa County’s Attorney Bill Montgomery, who has consistently interpreted the higher court’s decisions in the most traditional sense, disagreed.

"Because single persons, as well as married couples, can adopt,” he argued, “adoption is not exclusively 'linked' to marriage.”

Gay advocates including Attorney Jenny Pizer with the Lambda Legal Defense Fund said any law giving a preference for a heterosexual married couple over a same-sex married couple is constitutionally suspect.

"Well, what's the state's reason for that?'' she said. And Pizer said gender stereotypes of men and women are "not a legitimate reason for distinction.''

In 2015, Montgomery strictly limited the U.S. Supreme Courts recognition of gay marriage to the union itself and nothing further.  He claimed the law did not address adoption and went as far as refusing to provide legal help to same-sex couples seeking to adopt, a service normally provided to opposite-sex couples.

Gov. Doug Ducey vetoed recent attempt by lawmakers who tried to rescind a mandate requiring the county attorneys help all couples seeking adoptions.