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Turner v. Steiner

Court of Appeals of Arizona, First Division

June 22, 2017

HEATHER LYNN TURNER, Petitioner,
v.
THE HONORABLE RONEE KORBIN STEINER, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, LIZA MICHELLE OAKLEY, Real Party in Interest.

         Petition for Special Action from the Superior Court in Maricopa County No. FC2016-001466 The Honorable Ronee Korbin Steiner, Judge

          Berkshire Law Office, PLLC, Phoenix By Keith Berkshire, Erica L. Gadberry Counsel for Petitioner

          Campbell Law Group, Chartered, Phoenix By Claudia D. Work National Center for Lesbian Rights, San Francisco, CA By Shannon Price Minter, pro hac vice Counsel for Real Party in Interest

          Child and Family Law Clinic, The University of Arizona College of Law, Tucson By Paul D. Bennet, Barbara A. Atwood, Negar Katirai Amicus Curiae

          Presiding Judge Randall M. Howe delivered the opinion of the Court, in which Judge Jon W. Thompson joined and to which Judge Lawrence F. Winthrop dissented.

          OPINION

          HOWE, Judge.

         ¶1 Heather Lynn Turner seeks special action relief from the family court's granting Liza Michelle Oakley's motion for reconsideration of the family court's temporary orders, which gives Oakley rights as a legal parent to minor child C.T. pending the resolution of their marriage dissolution proceedings. In doing so, the family court held that Oakley is presumed to be C.T.'s parent under A.R.S. § 25-814(A)(1). The court also ruled that Turner is equitably estopped from rebutting that presumption because her actions before the proceedings began were "consistent with the position that this was a child of both parties." Turner argues that the family court erred because A.R.S. § 25-814 applies only to men and cannot be applied to presume paternity by a woman. She further argues that if the presumption applies, the court erred by ruling that she is estopped from rebutting it.

         ¶2 Special action jurisdiction is appropriate because Turner does not have an "equally plain, speedy and adequate remedy by appeal." Ariz. R. Spec. Act. 1(a). Orders that are merely preparatory to a later proceeding are not appealable. Villares v. Pineda, 217 Ariz. 623, 624-25 ¶ 10, 177 P.3d 1195, 1196-97 (App. 2008). Because the family court's temporary orders here are merely preparatory to a later trial on the dissolution, we accept jurisdiction. We grant relief and reverse the family court's ruling because the presumption of paternity statute, A.R.S. § 25-814, is gender-specific and cannot be applied to-or rewritten by the courts to apply to-women. In so holding, we respectfully disagree with a recent decision of another panel of this Court holding that the female spouse of a child's mother can claim a presumption of parentage under the statute. McLaughlin v. Jones, 240 Ariz. 560, 382 P.3d 118 (App. 2016), rev. granted, Apr. 18, 2017. Because we conclude that the presumption is not applicable here, we need not reach the issue of equitable estoppel.

         FACTS AND PROCEDURAL HISTORY

         ¶3 Turner and Oakley, who were in a long-term committed relationship, began attempting to conceive a child through artificial insemination in 2013. Although Turner would carry the child, the pair entered no formal written or oral agreements regarding parenting roles or rights that either would have over the child. The parties discussed whether Oakley should formally adopt the child should Turner become pregnant, but were unsure if adoption was necessary or if "just being on the birth certificate was enough." Turner did, however, draft a will stating that if she gave birth, Oakley would have sole custody of the child if Turner were to die. Turner and Oakley married in October 2014.

         ¶4 Oakley played an active role in the artificial insemination process, including reviewing sperm donor profiles, accompanying Turner to appointments, and being with Turner during the insemination procedures. Oakley did not, however, pay for any of the services or sign any fertility clinic documents. Instead, Turner-as the recipient of services-signed them. One of the documents contained a provision stating that Turner agreed that any child born from the insemination process would be the legal child of the recipient, "which designation shall include both recipient and recipient's husband or partner if applicable, " and that if a child is born "to husband and wife, such child . . . is considered their own."

         ¶5 Turner became pregnant through an insemination procedure and gave birth to C.T. in September 2015. Oakley was present at C.T.'s birth and cut the umbilical cord. When instructing Turner on how to obtain a birth certificate, a hospital nurse told Turner to list Oakley on the certificate in the section designated "father." Turner did so, listing both herself and Oakley on C.T.'s birth certificate. Neither Turner nor Oakley took further action to determine whether Oakley needed to formally adopt the child.

         ¶6 This unexplored issue became important in May 2016, when Turner petitioned for dissolution of her marriage to Oakley. In her petition, Turner stated that she and Oakley "have one minor child born of the marriage, " explaining that Turner was impregnated through artificial insemination and that although Oakley was listed on the birth certificate, Oakley had not formally adopted C.T. Turner asked that she be granted sole legal and physical custody of C.T. and that Oakley receive supervised visitation. She also asked that Oakley be required to pay child support. In a subsequent pleading, Turner asserted that because Oakley is neither C.T.'s natural nor adoptive parent, Oakley could not assert any rights regarding temporary legal decision-making or parenting time.

         ¶7 At the temporary orders hearing, Oakley asserted that she had rights as C.T.'s legal parent. She argued that although she is not the child's biological or adoptive parent, she is the presumed parent under A.R.S. ยง 25-814(A)(1), which states that "a man is presumed to be the father of a child" if he and the mother were married within ten months of the child's birth. The family court disagreed, concluding that the presumption of paternity statute applied only to men and that Oakley therefore could not claim the presumption. The court also concluded that even if the presumption applied, the presumption would be rebutted because Oakley is not biologically related to C.T. ...


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