Everything You Need to Know about Arizona’s Marital Presumption of Paternity

Arizona is one of the states that have a marital presumption of paternity. This presumption means that children born to a husband and a wife over the course of their marriage are considered to be children of the father without further testing being required.

The regulation is gender-specific, which poses some questions and has already led to issues. The biggest issues apply whenever the marital presumption of paternity is applied to cases involving same-sex partners.

Legal Background

The presumption of paternity is defined in Arizona Revised Statutes 25-814. According to this statute, a man is considered to be the father of a child in the following circumstances:

  • Whenever he has been married to the mother of the child for at least 10 months prior to the birth of a child
  • If genetic or DNA testing affirms paternity
  • Whenever two people who have a child out of wedlock sign the birth certificate as a mother and a father
  • Whenever both parents sign a notarized statement acknowledging that they’re the mother and the father of a child

Whenever a man claims to be the father of a child born to a married couple, the presumption of paternity will have to be rebutted through the use of DNA or genetic testing. For testing to occur, the written consent of the presumed father will be required.

The Rights of Fathers

marital presumption of paternityThe presumption of paternity that married men in Arizona enjoy gives them a number of important rights.

For a start, a presumed father has the right to seek child custody whenever he isn’t married to the mother or in the situation of a divorce.

Unless paternity is established, a man cannot seek child custody. Most often, establishing paternity will be a relatively easy task because the presumption will apply. In a few specific instances, however, the situation could get to be somewhat complicated.

Same Sex Couples and Marital Presumption of Paternity

Because marital presumption of paternity is not a gender-neutral term, it could lead to some complications whenever same-sex couples divorce or separate. One of the spouses could find it difficult to request custody because the presumption typically applies to a man who is also the father of the children.

In Arizona, the statutory framework is gender-specific and it applies to maternity and paternity in the ordinary way. The ordinary meaning of father under Arizona regulations is the male parent of a child. All of these presumptions are based on the fact that parentage is determined by biology. Assisted reproductive technologies, however, aren’t being taken in consideration.

This specific has brought the presumption of paternity laws in Arizona to the center stage. These laws are now being examined because paternity provisions don’t work in specific scenarios (for example, in the marriage between two women).

When same-sex marriage was legalized, there were discussions throughout the US about broadening the definition of presumed paternity. Arizona wasn’t an exception. In essence, proponents of the change want the definition to apply to parenthood rather than fathering a child.

The McLaughlin case in Arizona is one of the most recent examples. In 2016, the Arizona Court of Appeals ruled out that the non-biological spouse was entitled to a presumption of maternity. The two women had a child together through artificial insemination and they signed a joint parenting agreement. The document signifies that both of them have equal rights and obligations when it comes to parenting the child.

Analysis of the case shows that in the absence of the agreement, the court would have ruled out in favor of the biological mother who wanted to prevent her former spouse from getting custody. Thus, more work will be required to make the marital presumption of paternity regulations broader and applicable to all scenarios.