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McLaughlin v. Jones

Court of Appeals of Arizona, Second Division

October 11, 2016

Kimberly McLaughlin, Petitioner,
Hon. Lori B. Jones, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Suzan McLaughlin, Real Party in Interest.

         Special Action Proceeding Pima County Cause No. DC20130015

          Berkshire Law Office, PLLC, Phoenix By Keith Berkshire and Megan Lankford Counsel for Petitioner

          Campbell Law Group, Chartered, Phoenix By Claudia D. Work National Center for Lesbian Rights, San Francisco, California By Catherine Sakimura, Shannon Minter, and Emily Haan Co-Counsel for Real Party in Interest

          Family and Juvenile Law Certificate Program, Tucson By Barbara A. Atwood

          Child and Family Law Clinic, Tucson By Paul D. Bennett, a clinical professor appearing pursuant to Rule 38(d), Ariz. R. Sup. Ct., and Autumn Kycia, a student certified pursuant to Rule 38(d)

          Community Law Group, Tucson By Negar Katirai, an assistant clinical professor appearing pursuant to Rule 38(d), Ariz. R. Sup. Ct. Counsel for Amicus Curiae Child and Family Law Clinic, The University of Arizona Rogers College of Law

          Judge Espinosa authored the opinion of the Court, in which Presiding Judge Howard and Judge Staring concurred.


          ESPINOSA, Judge

         ¶1 In Obergefell v. Hodges, ___ U.S. ___, ___, 135 S.Ct. 2584, 2604-05 (2015), the United States Supreme Court held "same-sex couples may exercise the fundamental right to marry." In this special action, we are asked to decide whether, in light of that decision, the respondent judge erred by finding real-party-in-interest Suzan McLaughlin, the female spouse of petitioner Kimberly McLaughlin, is the presumptive parent of the child born to Kimberly, pursuant to A.R.S. § 25-814(A)(1), and finding Kimberly may not rebut that presumption pursuant to § 25-814(C). For the reasons that follow, we accept jurisdiction and deny relief.

         Factual and Procedural Background

         ¶2 Kimberly and Suzan were legally married in October 2008 in California. The couple agreed to have a child through artificial insemination, using an anonymous sperm donor selected from a sperm bank. Although efforts to have Suzan conceive and give birth through this process did not prove successful, Kimberly became pregnant in 2010. Before the child was born, the couple moved to Arizona. Anticipating the birth, they entered into a joint parenting agreement and executed mirror wills, declaring they were to be equal parents of the child Kimberly was carrying.[1] After E.'s birth in June 2011, Suzan stayed at home and cared for him, while Kimberly worked as a physician. The relationship deteriorated, however, and when E. was almost two years old, Kimberly moved out of the home, taking E. with her and cutting off his contact with Suzan.

         ¶3 Suzan filed a Petition for Dissolution of Marriage in April 2013, as well as a Petition for Legal Decision-Making and Parenting Time In Loco Parentis and Petition for Temporary Orders. The respondent judge subsequently stayed the proceedings while Obergefell was pending before the Supreme Court. In January 2016, six months after the Court decided Obergefell, holding same-sex couples have the same fundamental right to marry as heterosexual couples, ___ U.S. at ___, 135 S.Ct. at 2602-03, Kimberly moved to set the case for trial. The respondent ordered briefing concerning the issue whether the case was a dissolution proceeding with or without children in view of the presumption of paternity set forth in § 25-814(A). The respondent subsequently found in her April 7, 2016 minute entry that, based on Obergefell, it would violate Suzan's rights under the Fourteenth Amendment not to apply to her the same presumption of parenthood that applies to a man. The respondent thus ordered that the case proceed as a dissolution action with children.

         ¶4 Kimberly then filed a Motion for Declaratory Judgment, asking the respondent judge to decide whether she would be permitted to rebut the presumption pursuant to § 25-814(C). In her May 2 order, the respondent ruled that Kimberly would not be permitted to rebut the presumption. The respondent reasoned that because Suzan was not basing her parenthood on a presumption of paternity, it was not an issue in the case and there was nothing for Kimberly to rebut under the statute. The respondent added, a "family presumption applies to same sex and opposite sex non-biological spouses married to a spouse who conceived a child during the marriage via artificial insemination." The respondent also relied on A.R.S. § 25-501, a support statute applicable when a child is born as a result of artificial insemination, finding it necessarily gives rise to parental rights in the non-biological spouse. The respondent again ruled the case would proceed as a dissolution action with children. This special action followed.


         ¶5 This court has discretion whether to accept special- action jurisdiction. Lincoln v. Holt, 215 Ariz. 21, ¶ 3, 156 P.3d 438, 440 (App. 2007). In determining whether to exercise that discretion, we consider whether the petitioner has an equally plain, speedy, and adequate remedy by appeal. Ariz. R. P. Spec. Act. 1(a). Additionally, questions of law regarding the interpretation of a statute are particularly suited for special-action review, as are issues of first impression and statewide importance. See State v. Bernini, 230 Ariz. 223, ¶ 5, 282 P.3d 424, 426 (App. 2012).

         ¶6 The respondent judge's ruling could be challenged on appeal, after the case has been decided and a final decree and parenting order is entered. See Ariz. R. Fam. L. P. 78; Antonsen v. Superior Court,186 Ariz. 1, 4, 918 P.2d 203, 206 (App. 1996) (acknowledging order regarding paternity testing could be raised on direct appeal from final custody order but finding it in child's best interest to accept special-action jurisdiction and address legal issue). But this case raises significant legal questions of first impression and statewide importance regarding the interpretation and implications of Obergefell, and it involves a young child, whose best interest is at stake, compelling reasons to decide these matters now. See Alvarado v. Thompson,240 Ariz. 12, ¶ 10, 375 P.3d 77, 79 (App. 2016); see also Sheets v. Mead,238 Ariz. 55, ¶ 6, 356 P.3d 341, 342-43 (App. 2015) (accepting special-action jurisdiction in ...

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