Friday, 25 January 2019 07:52

Same Sex Divorce

I have seen and heard more questions about same sex divorce recently.  Same sex divorce is mostly just like any other divorce.  For example, the division of property and debt is the same, any award of spousal maintenance is the same, and calculation of child support is the same.  The fact that the parties are the same sex makes no difference on these issues.
The only issues that have a different analysis for same sex couples are legal decision making (“custody”) of children and parenting time (“visitation”).  Because same sex marriage is so new, the law on these issues is still developing.  However, the reason that these issues are different is because only one spouse in a same sex marriage can be the biological parent of a child, and for several years only one spouse in a same sex marriage could be the adoptive parent of a child.  Therefore, the issue is whether the non-parent spouse is a legal parent of the child or is entitled to non-parent visitation.  There are cases in which one same sex spouse adopts children, but the other spouse is not an adoptive parent.  Courts have so far decided some of these issues in same sex divorces under the statute permitting courts to order visitation to non-parents (A. R. S. § 25-409).  In some cases, the Courts have determined that the presumption that the spouse of a woman who gives birth to a child is the other parent applies to same sex spouses pursuant to A. R. S. § 25-814.
In McLaughlin v. Jones, the a same sex couple wed and then one of the spouses became pregnant by artificial insemination.  The couple then entered into a written and signed agreement to jointly raise the child.  The Arizona Court of Appeals held that a same sex spouse gets the same presumption of parenthood when a female spouse gives birth to a child conceived during the marriage.  However, the other spouse may rebut the presumption of parenthood.  However, in this case the biological mother could not rebut the presumption because she had entered into a written and signed agreement to the contrary.  Therefore, the non-parent same sex spouse gets the presumption, but it should usually be easy to rebut the presumption, in which case visitation would be decided under the statute addressing non-parent visitation.
In Sheets v. Mead, a same sex, unmarried couple were foster parents to a child, but only one of the members of the couple eventually adopted the child because at the time same sex couples could not both adopt a child.  After the adoption, the couple eventually separated and the non-parent filed a petition for non-parent visitation.  The Arizona Court of Appeals held that a child adopted before the petition files a petition for non-parent visitation is not eligible for non-parent visitation under the statute.  The court based its ruling on extensive jurisdictional analysis and statutory construction.  The result may have been different had the petitioner filed her petition before the adoption.
In Goodman v. Forsen, a fit mother’s former live-in girlfriend sought non-parent visitation.  The fact that this was a same sex couple made no difference.  The Court of Appeals held that the burden of proof was not on the mother, but on the person seeking visitation to prove that the fit parent’s decision to not allow visitation would substantially impair the child’s best interests.  This case had significant implications for non-parent visitation cases (no mater the sex of the parties) because it made it much more difficult to attain non-parent visitation.
In Doty-Perez v. Doty-Perez, a same sex spouse adopted four children subsequent to her marriage.  At the time, Arizona law did not provide for a same sex couple to adopt children, so her spouse was not an adoptive parent.  The couple intended to raise the children together, but the marriage eroded after the adoption and the couple divorced.  The non-parent spouse asked the trial court to declare her a legal parent.  The trial court denied that request because no presumption of legal parenthood exists in this situation.  Arizona law clearly states that the parental relationship exists between the adoptive parent and the child, not the adoptive parent’s spouse.  Obergfell (the United States Supreme Court case requiring the recognition of same sex marriage) does not require states to retroactively change adoptions.  The non-parent spouse then petitioned for non-parent visitation.  The Court of Appeals eventually held that Arizona’s non-parent visitation statute (A. R. S. § 25-409) does not provide for non-parent visitation for a child adopted by one spouse and not the other spouse (the statute specifically provides for non-parent visitation when one of the legal parents is deceased, the child’s legal parents are not parried to each other when the petition is filed, or a petition for divorce or legal separation of the parents is pending at the time the petition is filed).
In Turner v. Steiner, a different division of the Arizona Court of Appeals disagreed with the McLaughlin court.  In Turner, one spouse in a same sex couple became pregnant by artificial insemination.  The couple did not have a written agreement to co-parent the child, but their conduct appeared to support such an agreement.  The trial court held that the non-parent spouse was presumed to be a legal parent and the parent spouse could not rebut the presumption because of the implied agreement to co-parent the child.  The appellate court reversed, reasoning that Obergfell requires states to treat same-sex spouses the same as opposite-sex spouses, and not allowing a same-sex spouse to rebut the presumption because of an agreement (express or implied) when an opposite-sex parent would simply have to disprove biological parentage with a DNA test would be inconsistent with Obergfell.
This area of law is rapidly changing and further appellate decisions and possible changes in Arizona’s statutes will likely provide further developments during the next few years.
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