Arizona Court: Married Nonbio Mom Has No Claim to Parenthood; Obergefell Is Irrelevant

The Arizona Court of Appeals ruled yesterday that a nonbiological mother is not entitled to be seen as a parent, even though she was married to the biological mother, they planned the child together, and both of their names were on the child’s birth certificate. It also said that the U.S. Supreme Court’s marriage equality ruling in Obergefell has nothing to do with parenting statutes.

Heather Turner and Liza Oakley married in October 2014 and Turner gave birth to their child, C.T., in September 2015. Oakley “played an active role in the artificial insemination process, including reviewing sperm donor profiles, accompanying Turner to appointments, and being with Turner during the insemination procedures,” according to court documents. She was also present at the child’s birth and cut the umbilical cord. Turner put both their names on the birth certificate, entering Oakley in the place for “Father,” based on the instructions of a hospital nurse. Oakley did not, however, get a second-parent adoption.

In May 2016, Turner filed for divorce. She asked for sole legal and physical custody of their child, with supervised visitation for Oakley, and asked that Oakley be required to pay child support. She also said that because Oakley is neither the biological nor adoptive parent, she had no rights “regarding temporary legal decision-making or parenting time.”

Oakley disagreed, saying she is a presumed parent under under the Arizona law stating “a man is presumed to be the father of a child” if he and the mother were married within ten months of the child’s birth. The family court, however, said this “presumption of paternity” statute applied only to men—and even if it did apply, it would be rebutted because Oakley is not biologically related to the child. It thus issued temporary orders identifying Turner as the child’s sole legal parent, but granting Oakley supervised visitation.

Oakley appealed. In the meantime, another panel of the family court issued a ruling in another case, McLaughlin, that had recognized the parental rights of a nonbiological mother. Based on the McLaughlin decision, the family court agreed to review Oakley’s case. During a hearing, they heard evidence from both sides, “including social media posts in which Turner called Oakley C.T.’s mother,” and concluded that Turner could not challenge Oakley’s presumption of parentage because “the two women intended to raise the child together as co-parents.”

Turner then petitioned for further review of the case, leading to yesterday’s appeals court ruling.

Oakley argued that the presumption statute must be construed gender-neutrally, just as the McLaughlin case had concluded. She also contended that the U.S. Supreme Court decision in Obergefell v. Hodges, which led to federal marriage equality, demands that it be read gender-neutrally.

Judge Randall Howe, who wrote the opinion (which Judge Jon  Thompson joined), disagreed with this interpretation, writing, “Obergefell does not extend so far as to require the courts to modify statutory schemes relating to same-sex parenting,” and adding that nothing in Obergefell “mandates that any laws dealing with maternity and paternity be changed or expanded.”

Judge Howe said that Obergefell was not relevant because “the purpose of the presumption statute is to assist in determining whether a man is a child’s biological father … not to broadly establish a term or condition associated with marriage.”

The family courts in both McLaughlin and Oakley’s cases, Judge Howe said, were wrong to say that because presumptions of parenthood were “not necessarily biologically based,” the presumption statute could be gender-neutral. “With the exception of adoption, which is not involved in this case—parentage in Arizona is determined by biology,” he wrote. “Because the biological difference between men and women is the reason for the statute, and biology is used specifically to determine paternity, [the presumption statute] cannot be read gender-neutrally as a presumption of parentage statute.”

Even using gender-neutral terms wouldn’t help. He explained, “Because Oakley and other similarly-situated spouses are never biologically related to the children” in these cases, “the other spouse will always defeat the presumption by proving that the former spouse is not biologically the child’s parent.”

The statutes for maternity and paternity proceedings each have different guidelines, Howe, continued, and require that “the ordinary and contrasting meanings of ‘maternity’ and ‘paternity’ need to be applied. Ignoring the gender-specific language would disrupt this statutory scheme.”

In McLaughlin, Howe explained, the court said that the biological mother could not challenge the nonbiological mother’s parentage because the two of them had clearly agreed in writing to parent together. While that was all well and good for that case, Howe said, “Not every same-sex couple will have a written agreement clearly establishing their intent…. The applicability of clear and plain statutory language in such a weighty matter as a child’s parentage should not depend on the quality of the documentation of a couple’s intent.”

He therefore concluded that the courts could not do anything for Oakley, but the Legislature might:

We sympathize with Oakley’s desire to legally establish that she is C.T.’s parent alongside Turner and recognize that this issue will recur in other cases with increasing frequency. We also understand C.T.’s need— and the need of every child affected by this issue—to have permanent and stable parental relationships. But the paternity statutes as they are currently written provide no remedy to Oakley, and we cannot rewrite the statutes to do so, no matter how laudable that outcome might be as a matter of public policy…. The remedy for Oakley and others similarly-situated lies not with the courts, but with the Legislature.

Judge Lawrence Winthrop dissented, explaining that he believes Obergefell does mandate a gender-neutral interpretation of the presumption statute. “I disagree with the premise that this court should decline to apply such an interpretation on the basis that it will ‘disrupt the statutory scheme’ of Arizona’s paternity statutes. Affording equal rights of parentage to same-sex spouses would instead foster ‘the permanency and stability important to children’s best interests’ and should take priority over any speculative fears of disrupting the statutory scheme.” He noted a very similar New York case that last year upheld the rights of the nonbiological mother. [As did a Massachusetts case last year as well.]

Oakley has appealed her case to the Arizona Supreme Court. A hearing is set for next week, reports the Arizona Capitol Times.

This is a very scary ruling because it hits at the expansion of same-sex parents’ rights that many hoped would ripple out after Obergefell. It is also yet another reminder that yes, second-parent adoptions are still a good idea, and that marriage equality is not the same as parental equality. I’ll be watching this case closely.