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Same-Sex Couples Child Custody Issues

It is important to note that this area of law is constantly in a state of flux and there is no firm case law or statutes yet pertaining to these areas.  Please contact our office for the most up to date legal information governing this area of law.

Many fact scenarios can arise when a same sex couple decides to have a child.  Arizona has banned surrogacy since 1989.  While the Arizona Supreme Court held that subsection (B) of A.R.S. 25-318 was unconstitutional  (this section held that a surrogate is the legal mother of a child born as a result of a surrogate parentage contract and is entitled to custody of that child), subsections (A), (C), and (D) arguably still remain in effect.  This part of the statute provides that no person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract.  The statute also provides that if the mother of a child born as a result of a surrogate contract is married, her husband is presumed to be the legal father of the child, although this presumption is rebuttable.  For the purposes of A.R.S. 25-318, a “surrogate parentage contract” is defined as a contract, agreement or arrangement in which a woman agrees to the implantation of an embryo not related to that woman or agrees to conceive a child through natural or artificial insemination and to voluntarily relinquish her parent rights.

Despite this statute, however, there are arguments that can be made and case law that may be used to support the position that the entirety of A.R.S 25-318 is unconstitutional.  For example, in Juvenile court, the court terminated the gestational or surrogate mother’s parental rights based on contractual abandonment where the surrogate mother asserted her legal rights and refused to terminate her rights as contractually agreed to.  Thus, if you are planning to use a surrogate for the birth of your child, you need a knowledgeable and aggressive attorney to guide you through this complicated and ever changing process.

The Arizona Court of Appeals has held that when one woman is the birth mother and the other woman utilized her egg in the reproductive process that both women are genetic mothers and both women may be placed on the birth certificate accordingly.  However, in a case where one woman births the child and the other woman does not provide genetic material in the reproductive process, or in the case where one man provides sperm and the other man does not, under Arizona statute, the person who does not provide genetic material is not a legal parent.

As such, a non-legal parent may wish to consider adoption in order that they can assert their parental rights to the child.  Although same sex couples are still prohibited from third party adoptions in the state of Arizona, the legality of same sex marriage may allow for one parent to proceed with a step parent adoption of a non-biological child.  If you plan on having a child as a same sex couple in Arizona, you should seek competent legal advice in advance to assure that you have secured your legal parental rights to the child and to obtain the most updated information on this changing area of the law.

For a free consultation regarding your situation, please give our offices a call at (602) 254-8880 or send us an email and we’ll get back to as soon as we can.

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