The arrival of same-sex marriage throughout the United States, including Arizona, was a pivotal development in the advancement of equal protection under the law. As much as it is cause for celebration, many legal issues surrounding marriage equality remain to be addressed. As in many other states, Arizona law has not yet been fully revised to reflect the change in federal law. To complicate matters, the impending arrival of a new administration in Washington has left many members of the LGBTQ community feeling uncertain about the future. Now more than ever, you need the expertise of an Arizona same-sex attorney to review your matter and help you navigate this complex and rapidly evolving area of family law.
How same-sex marriage in Arizona affects child custody
As is all too common in the law, children’s needs get lost in the shuffle. Contrary to popular perception, the recognition of same-sex marriage in Arizona does not suddenly make any or all children in same-sex households the legal child(ren) of both the biological parent and his or her non-biological-parent partner. One unanswered question is whether the marital paternity presumption, in which only men have been deemed to be a legal parent if married to the mother, also should be applied to women as a maternity presumption when they are spouses of mothers.
Same-sex individuals or couples who want to add a second mother or father to a child’s birth certificate in Arizona are finding they cannot do so. The Arizona Department of Health Services’ Vital Records Division continues to prohibit it, following its long-standing policy that only one mother and one father can be listed on the birth certificate of a child born in Arizona. By comparison, California allows up to two mothers or two fathers on its birth certificates. This is why many Arizona same-sex attorneys still recommend that pregnant mothers go to California to give birth and begin the adoption process for the second mother or second father.
Arizona adoption laws still do not allow two unmarried people to adopt together. Also, surrogacy contracts remain illegal in Arizona. This means two gay men who want a child will have to come up with another solution for bringing a child into the world.
One new avenue to legal parenthood that is available to legally married same-sex couples in Arizona is step-parent adoption. In a lesbian relationship in which one of the spouses is a bio mom, conception is achieved through donor sperm. The donor waived all rights to the child long ago, providing for a relatively quick and easy process for making a step-parent a legal second parent.