An Arizona woman is making a last-ditch effort to avoid sharing custody with her ex-wife.

Keith Berkshire, attorney for Kimberly McLaughlin, is asking the U.S. Supreme Court to overturn last year's ruling by Arizona's high court.

In September 2017, the Arizona Supreme Court concluded that Suzan McLaughlin, Kimberly McLaughlin's ex-wife, had the same right to claim parentage as if she had been Kimberly McLaughlin's husband.

Background

Court records show Kimberly and Suzan McLaughlin, legally married in California in 2008 and agreed to have a child through artificial insemination using an anonymous sperm donor.

Kimberly McLaughlin became pregnant in 2010. The couple moved to Tucson, entered into a joint parenting agreement and executed mirror wills: declaring they were equal parents to the child.

After the boy's 2011 birth, Suzan McLaughlin stayed home and cared for him while Kimberly McLaughlin worked as a physician.

When he was almost 2 years old, Kimberly McLaughlin moved out — cutting off their son's contact with Suzan McLaughlin.

In filing for divorce, Suzan McLaughlin sought parenting time.

She cited an Arizona law which says that the husband is the presumed parent of a child born within 10 months of a marriage.

When a trial judge agreed to let the case proceed, Kimberly McLaughlin appealed. She said the paternity presumption law — by its plain wording — applies only when the other spouse is a man.

Arizona Supreme Court Ruling

When the Supreme Court legalized same-sex marriage in 2015, states extended statutes and regulations of marriage to same-sex couples. This included property rights, hospital access, adoption rights and paternity.

It was this ruling that was cited when the Arizona Supreme Court decided in favor of Suzan McLaughlin.

In writing last year's ruling, Arizona Supreme Court Chief Justice Scott Bales said he reads the U.S. Supreme Court ruling on gay marriage to "require a reassessment of various state statutes, rules, and regulations to the extent they deny same-sex spouses all of the benefits afforded opposite-sex spouses.''

New Argument

Berkshire, Kimberly’s McLaughlin attorney, said nothing in the 2015 U.S. Supreme Court ruling or the Arizona Supreme Court ruling requires states to ignore biological difference between men and women.

"When a woman is married to another woman, it is impossible for both women to be biologically related to the child,'' he said. "A statute that acknowledges this biological fact does not violate the Fourteenth Amendment'' which guarantees equal protection under the law.

Current Arizona law clearly states men have presumption of paternity if, “he and the mother of the child were married at any time in the 10 months immediately preceding to birth or the child is born within 10 months after the marriage is terminated.”

In his legal filings, he writes that the Arizona Supreme Court justices effectively adopted a statue dealing with how paternity cases are handled in cases of artificial insemination.

"Arizona does not have an artificial insemination statute, and Arizona is not required to enact one,'' the attorney told the justices. But he said the ruling written by Arizona Supreme Court Justice Bales effectively "circumvented the legislature'' and enacted the model law.

"But this is not the court's role,'' Berkshire said. "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.''

Implications of the U.S. Supreme Court Decision

What the U.S. Supreme Court decides could have implications beyond the specifics of this case.

Oregon, New Jersey and New York are the only states that have statutes specifically stating that if a child is born to a woman through artificial insemination, her husband is automatically treated as if he were the child's biological parent.

The court’s decision would determine if the federal legalization of same-sex marriage supersedes any state statutes that differentiate between the genders or between same-sex couples and heterosexual couples.