U.S. Supreme Court Asked to Weigh in on Same-Sex “Paternity” Battle

Is paternity about a biological relationship to a child, or is it a tool to provide children the care and support of two parents? If the U.S. Supreme Court agrees to hear an appeal on an Arizona same-sex paternity battle, it could affect the rights of non-biological parents mothers and fathers across the country.

Kimberly and Susan McLaughlin were a committed same-sex couple. They were married in California in 2008 and began the process of starting a family through in vitro fertilization (IVF). After Susan was unable to conceive using an anonymous sperm donor, Kimberly became pregnant in 2010. During the pregnancy, the couple moved to Arizona, where their marriage was not legally recognized.

In 2011, Kimberly and Susan entered into a parenting agreement declaring Susan a “co-parent” of the child and indicating Kimberly’s intent that Susan have the same rights, responsibilities, and obligations of a biological parent. After their baby boy was born in June 2011, Susan was a stay-at-home mother while Kimberly worked as a physician. Unfortunately, two years later, their marital relationship broke down and Kimberly moved out, taking the child with her. Susan was not allowed contact.

Susan filed for a dissolution of their marriage in 2013, including asking for legal decision-making (Michigan’s legal custody) and parenting time with the boy, identified as E. Since Arizona did not recognize the couple’s marriage, the State intervened and the case stalled.

After the Obergefell decision in 2015, the State withdrew its objection and the divorce was resolved. Susan was named a presumptive parent of E under an Arizona law that predated same-sex marriage. That law became the basis of a series of appeals that have now made it to the doors of the United States Supreme Court.

Arizona Paternity Laws vs Michigan’s Paternity Act

Under Arizona law, “[a] man is presumed to be the father of a child if [h]e and the mother of the child were married at any time in the ten months immediately preceding the birth or the child is born within ten months after the marriage is terminated.” Paternity, in this case refers to the parent’s legal parental rights and responsibilities. According to the Arizona Supreme Court, this is separate from any biological connection.

The equivalent Michigan law, MCL 722.2114, applies a similar assumption:

“If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession. A child conceived by a married woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession.”

Arizona’s law make the sexual distinction more clearly. The state’s law also does not have the same protections for the spouses of women who have children through artificial insemination. That distinction has been the key to Kimberly’s attorney’s appeal: that the Arizona paternity law is based on biology, rather than legal parental rights.

Arizona State Supreme Court Says Paternity is Part of Obergefell‘s Fundamental Rights

When the McLaughlin case came before the Arizona State Supreme Court, the question was whether the presumption of paternity was one of the “constellations of rights” connected to marriage. Kimberly’s legal team wanted the court to interpret Obergefell very narrowly, saying it only did 2 things: (1) that states could not deny same-sex couples the fundamental right to marry; and (2) that states had to recognize same-sex marriages performed elsewhere.

But the Arizona Supreme Court looked at the second U.S. Supreme Court case on the issue: Pavan v Smith. In that case, the Supreme Court said that the mother’s female spouse had the right to be named on their child’s birth certificate because it addressed legal parent status, not simply biology. In Pavan, the Supreme Court emphasized that Obergefell was intended to be broader than simply marriage. It addressed the disparate treatment of same-sex and opposite-sex marriages, with all the rights and privileges states attach to that status.

U.S. Supreme Court Could Take a Third Same-Sex Marriage case

Kimberly wasn’t satisfied with the Arizona Supreme Court’s decision. Her attorneys have filed a Petition for Certiorari asking the U.S. Supreme Court to weigh in on her same-sex custody battle. Her argument continues to be that Arizona’s paternity law assumes a biological relationship between a child and his or her mother’s husband. According to her, the establishment of paternity has nothing to do with a parent’s rights to the care and custody of her child, or a child’s right to care and support from his or her parents.

Pavan pointed out that the right to be listed on a child’s birth certificate was one of the articulated “constellation of rights” connected to marriage. Custody is in that list as well. The U.S. Supreme Court has options:

  • It could deny certiorari, establishing that Arizona’s paternity law must apply to married same-sex couples as well as opposite-sex couples. This would not affect laws in Michigan or other states.
  • It could grant certiorari and follow Pavan in establishing same-sex custody as part of the constellation of rights connected to marriage.
  • It could grant certiorari and say paternity laws are properly based on the physiological differences between men and women, emphasizing biology rather than parenting rights. This would negatively affect the rights of non-biological parents across the country, requiring them to take additional steps, like adoption, to protect their rights to their children.

It is very rare for the U.S. Supreme Court to take a family law case. Since the issues are almost all within the realm of states’ rights, there isn’t much the U.S. Supreme Court has to say on the matter. But the McLaughlin same-sex custody battle invokes the 14th Amendment Equal Protection Clause, making it a a federal issue, and a decision that could shape paternity across the country.

Lisa J. Schmidt is a family lawyer at Schmidt & Long, PLLC, in Ferndale, Michigan. She addresses custody and paternity issues, with a special focus on LGBT family law issues. If you need to help establishing or enforcing your parental rights, contact Schmidt & Long to schedule a consultation.