Family law attorneys in Phoenix and around the state have been eagerly awaiting the Arizona Supreme Court's decision of how to interpret and apply Arizona's presumption of paternity statute, A.R.S. §25-814. When the U.S. Supreme Court announced a decision in the Pavan v. Smith case this week, it looked like we wouldn't have to wait much longer.
Pavan v. Smith was a case from Arkansas about how that state issued birth certificates when a newborn's mother was married to someone other than the biological father. According to Arkansas law, "the mother's husband" had to be listed as the father. Terrah and Marisa Pavan took that policy to court, arguing that applying that policy only to male spouses was unfairly discriminatory and inconsistent with the Supreme Court's landmark Obergefell decision requiring all States to make the benefits of marriage available to same sex couples on an equal basis to opposite sex couples. The majority of the Supreme Court agreed with the couple, ruling that Arkansas considered a birth certificate a form of official legal recognition given only to married parents, and therefore it must be given on the same basis to all married parents, regardless of biological relationships.
Here in Arizona, our Supreme Court was faced with a related question. A.R.S. §25-814 is a paternity statute which says that when a married woman gives birth, her husband is presumed to be the child's father. Two different divisions of our Court of Appeals had considered the question of whether that presumption would apply to a female spouse and reached opposite conclusions.
In an opinion that cites to Pavan several times, the Arizona Supreme Court has now determined that the statute which historically made a woman's husband the "default" father must apply equally to same-sex couples. Kimberly and Suzan McLaughlin, the couple whose divorce sparked this legal controversy, will now both be considered the legal parents of the child born to Kimberly McLaughlin and the family court will now determine legal decision making authority and parenting time between the parties.
With the ruling in the McLaughlin case, at least this issue appears to be settled: when a married woman gives birth, her spouse is presumed to be a legal parent. However, as the court's own ruling hints, this decision generates questions as well as answers. Some of the issues the Court suggested that may need to be revisited include: "taxation, inheritance and property rights, rules of intestate succession, spousal privilege in the law of evidence, hospital access, medical decision-making authority, adoption rights, the rights and benefits of survivors, birth and death certificates, professional ethics rules, campaign finance restrictions, workers' compensation benefits, health insurance, and child custody, support, and visitation rules." The court's decision strongly hinted that the legislature should address these reforms, something that it has so far been unwilling to do.
Until the lawmakers get back to us, it's going to be an interesting time to be an Arizona family lawyer.