All Or Nothing: AZ Same Sex Couples and Legal Decision Making Over Their Kids

by | Oct 21, 2013 | Child Custody, Legal Decision-Making, Relationships, Same Sex Marriage, Uncategorized

All Or Nothing: AZ Same Sex Couples and Legal Decision Making Over Their Kids

Separating Same Sex Couples and Lack of Legal Protection

Written by: Stefano Ceroni

More and more frequently, our practice is seeing cases involving same-sex couples who are going through the process of separation.  Generally speaking, because Arizona law does not recognize same-sex marriage, there is not much legal protection afforded to these couples.  As a result, there is usually little that can be achieved by way of the courts when it comes to the parties’ separation.

For example, because same-sex couples cannot achieve marital status in the state, they are not offered any of the benefits of Arizona community property law. In other words, an Arizona family law court will not help the parties distribute their property or make any findings regarding spousal maintenance.  Unfortunately, as a result of this hands-off approach, same-sex couples are often left to their own devices for resolving their post-breakup disputes.


The problem, however, is that sometimes the separation issues regarding same-sex couples involve more than just property and money, they involve children.  In fact, with the advent of reproductive technology and the proliferation of single-parent adoption, more and more same-sex couples are cooperatively raising children together.  As a result, when same-sex couples decide to go their separate ways, there is usually an intense dispute over which party is entitled to parental rights.

How Do You Define Who a “Legal Parent” Is?

According to Arizona law, a “legal parent” is defined as a biological or adoptive parent whose parental rights have not been terminated.  This definition is significant to Arizona same-sex couples for two (2) reasons.  First, and most obvious, because same-sex couples cannot both be genetically related to the child, it logically follows that only one of the parties could potentially have parental rights as a result of biology.  Second, because Arizona law only permits joint adoptions to couples defined as “husband and wife,” same-sex couples are barred from mutually adopting a single child.  And, because a child cannot be adopted without the termination of both the child’s biological parent’s rights, it is essentially impossible for same-sex couples to both have “legal parent” status over the same child in the State of Arizona.

That being said, only one party in a same-sex relationship will be afforded presumptive legal decision-making rights over a child.

The end, right?!

Not so fast.

A Non Legal Parent Could Still Have Rights Over The Kids

Presumably, there are times when despite the lack of “legal parent” status, a same-sex partner has formed a meaningful parental relationship with their partner’s legal child.  In these cases, the non-legal same-sex parent is not always without recourse. In fact, Arizona has a statute dedicated to outlining the rights of third-party non-legal parents over children. (See A.R.S. § 25-409…formerly A.R.S. § 25-415).

The problem, however, is that in order to be granted legal decision-making rights (f.k.a child custody), the non-legal parent will have to show that it would be significantly detrimental to the child at issue to be placed in the care of their former partner.  In addition, they will also have to overcome a presumption that it is in the minor child’s best interest that the legal parent be awarded sole legal decision-making authority. Obviously, these are not easy burdens to overcome.

Reasons for Having an “All or Nothing” Approach Regarding Same Sex Couples and Legal Decision Making

Now, some of you might be wondering why the court can’t just simply divide legal decision-making rights like it so often does in traditional cases involving two legal parents (i.e. jointly or equally)?

The reason is that Arizona also recognizes the importance of protecting the inherent rights of legal parents with respect to their children.  As a result, when a legal parent objects to a non-legal parent’s access and decision-making authority over their child, the Court defends the legal parent’s rights by awarding deference to their decision.  In fact, Arizona Courts have held that it would be impossible to protect a fit legal parent’s constitutional rights to make decisions about their children while simultaneously allowing a non-legal parent to have equal decision-making rights and/or access to the legal parent’s child. Therefore, in order for a non-legal parent to receive any legal decision-making rights at all, they must be able to prove that they are entitled to all rights (sole legal decision-making/custody); not just equal rights.

This is significant because in order for the Court to award sole legal decision-making authority, it will generally need to find that the opposing party is unfit and incapable of making any decisions in the child’s best interest. As a result, absent a showing of mental illness, drug abuse or domestic violence, the non-legal parent is going to have a tough case to prove. That being said, it really is an all or nothing approach when it comes to the Court’s authority regarding same sex couples and legal decision making over their kids.

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