Same Sex Marriage Dissolution in Arizona and Custody Considerations
Arizona is one of the states that have been recognizing sex same marriages as legal unions since October 2014. When such a same sex marriage dissolution in Arizona comes up, however, the couple will need to deal with a number of important considerations.
Child custody ranks among the most crucial ones and convoluted ones. Same-sex couples in Arizona share the same rights and responsibilities as heterosexual couples. These rights include property division, child support, custody of children and parenting time.
Complications in Custody Considerations
A legal court case from Arizona could have a significant impact on the life of same sex couples, who are going through a same sex marriage dissolution in Arizona, as well as on their children.
The debate focuses on whether court should examine all aspects of divorce rulings in a gender-neutral way. In the summer of 2017, Suzan McLaughlin got a lot of media attention for a custody battle over her seven-year-old son.
In October, the Arizona Court of Appeals ruled out that the same-sex spouse of a birth mother is entitled to the same rights as a man who’s the biological father of a child. Such an interpretation of the law was required due to the fact that McLaughlin’s son was conceived via artificial insemination.
In 2008, Suzan got married to Kimberly McLaughlin and the couple decided to have a child through the use of assisted reproductive techniques. Kimberly McLaughlin got pregnant, carried the child to term and gave birth in 2011. Suzan filed for divorce in 2013 after her wife and son had moved out of the house for a certain period of time. She also requested parenting time from court. According to Kimberly McLaughlin’s attorney, however, Suzan was not a parent according to the legal definition of the term.
Kimberly McLaughlin and her legal team insisted that a woman in a heterosexual marriage had the right to challenge the fatherhood of her husband. She could use DNA testing to prove in a custody battle that her husband wasn’t the biological father of the child. Lesbian women, however, were denied such an option.
Thus, the issue in Arizona is whether the state’s interpretation of paternity is linked to being married or to biology. A Supreme Court ruling is currently being expected in the legal battle between Suzan and Kimberly McLaughlin.
Since Arizona regulations offer the same protections and responsibilities to same-sex spouses, Suzan would be entitled to “paternity” rights. According to law, a man is presumed to be a father of a child if he were married to the mother for at least 10 months prior to birth. It would be interesting to find out how Supreme Court would apply this regulation to a custody battle in a same sex marriage dissolution in Arizona.
In Loco Parentis Visitation Rights
Same-sex custody battles involve requests for in loco parentis visitation rights. The legal term refers to someone who doesn’t have a biological connection to a child but is acting as a parent.
While the Suzan v. Kimberly McLaughlin court proceedings suggest that it may be challenging to complete such proceedings quickly and efficiently, there are possibilities for an individual who isn’t the biological parent of their child.
A court is expected to apply a rebuttable presumption that the biological parent is making a custody decision by keeping the child’s best interest in mind. In such instances, the burden of proof falls on the individual who is filing for in loco parentis rights.
Based on these, the court will take into consideration the manner in which the marriage and the relationship between the two spouses has evolved, the motivation for seeking visitation rights, the motivation of the person who’s denying their former spouse such rights and the amount of visitation time requested. Based on all of these considerations, a court will be capable of ruling out whether contact with both spouses is in the child’s best interest or if some restriction should be applied.