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
and Juvenile Law Certificate Program, Tucson By Barbara A.
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
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
Espinosa authored the opinion of the Court, in which
Presiding Judge Howard and Judge Staring concurred.
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.
and Procedural Background
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. 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.
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.
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.
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
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 ...