Kimberly and Suzan, a same-sex couple, got married and began trying to have a baby. Suzan attempted to become pregnant using an anonymous sperm donor but did not conceive, and then Kimberly conceived a child using the same method. During the pregnancy, Kimberly and Suzan executed a joint parenting agreement stating that Kimberly intended Suzan to be a co-parent. After Kimberly gave birth, she returned to work while Suzan stayed home to care for their child. Two years later, Kimberly moved out, taking the child with her and denying Suzan access to him. Suzan filed a petition for legal decision-making and parenting time.
Under Arizona law, a man who is married to the mother of a child is afforded a rebuttable presumption of parentage. A.R.S. § 25-815(A)(1). The text of the statute clearly indicates that the presumption applies only to men: “A man is presumed to be the father of the child if . . . [h]e and the mother of the child were married . . . .” However, the United States Supreme Court held in Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015), that states must provide same-sex couples with “the same terms and conditions” of marriage as opposite-sex couples, and then held in Pavan v. Smith, 137 S. Ct. 2075, 2077 (2017), that differential treatment of same-sex couples violates “Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that States have linked to marriage.’” Under Arizona law, the marital presumption is not limited to biological fathers: a man whose wife conceives using anonymous donor sperm enjoys the benefit of the marital presumption. Suzan is similarly situated to men whose wives conceive using anonymous donor sperm. As such, the Arizona Supreme Court held that excluding Suzan from the marital parentage presumption denies her a benefit linked to marriage, which violates the Fourteenth Amendment of the U.S. Constitution.
Faced with two remedial alternatives—declare the statute a nullity or hold that the presumption applies to a spouse of either gender—the Court held that extension of the statute, rather than abrogation, is more consonant with the purposes of the marital parentage presumption: to ensure that children have financial support from two parents and to ensure that a child has meaningful parenting time with both parents.
The Court further held that Kimberly was equitably estopped from rebutting the presumption due to the undisputed facts of the case: Kimberly conceived and gave birth to the child while married to Suzan, Kimberly intended for Suzan to be a parent to the child, and Suzan relied on this when she formed a mother-son bond with the child and parented him from birth.
Chief Justice Bales authored the opinion of the Court, in which Justices Brutinel and Timmer and Judge Jones joined. Justice Lopez, joined by Vice Chief Justice Pelander, concurred. Justice Bolick concurred in part and dissented in part.
Posted by: Andrea M. Taylor