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McLaughlin v. Jones

Supreme Court of Arizona

September 19, 2017

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

         Appeal from the Superior Court in Pima County The Honorable Lori B. Jones, Judge Pro Tempore No. DC20130015 AFFIRMED

         Opinion of the Court of Appeals, Division Two 240 Ariz. 560 (App. 2016) VACATED

          Keith Berkshire (argued), Erica L. Gadberry, Berkshire Law Office PLLC, Phoenix, Attorneys for Kimberly McLaughlin

          Shannon Minter (argued), Emily Haan, Catherine Sakimura, National Center for Lesbian Rights, San Francisco, CA; and Claudia D. Work, Campbell Law Group Chartered, Phoenix, Attorneys for Suzan McLaughlin

          Barbara A. Atwood, Professor of Law Emerita, Director, Family and Juvenile Law Certificate Program, Paul D. Bennett, Clinical Professor and Director, Child and Family Law Clinic, Negar Katirai, Director, Community Law Group, and Jason Buckner, Natalie Cafasso, and Chris Lloyd, Rule 38(d) Certified Law Students, Child and Family Law Clinic, The University of Arizona, Tucson, for Amici Curiae Child and Family Law Clinic, The University of Arizona James E. Rogers College of Law

          Leslie Cooper, American Civil Liberties Union Foundation, New York, NY; and Kathleen E. Brody, American Civil Liberties Union Foundation of Arizona, Phoenix, Attorneys for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Arizona

          Gregg R. Woodnick, Markus W. Risinger, Woodnick Law PLLC, Phoenix, Attorneys for Amicus Curiae Arizona Family Law Practitioners

          CHIEF JUSTICE BALES authored the opinion of the Court, in which JUSTICES BRUTINEL and TIMMER and JUDGE JONES joined [*] . JUSTICE LOPEZ, joined by VICE CHIEF JUSTICE PELANDER, concurred. JUSTICE BOLICK concurred in part and dissented in part.



         ¶1 Under A.R.S. § 25-814(A)(1), a man is presumed to be a legal parent if his wife gives birth to a child during the marriage. We here consider whether this presumption applies to similarly situated women in same-sex marriages. Because couples in same-sex marriages are constitutionally entitled to the "constellation of benefits the States have linked to marriage, " Obergefell v. Hodges, 135 S.Ct. 2584, 2601 (2015), we hold that the statutory presumption applies. We further hold that Kimberly McLaughlin, the birth mother here, is equitably estopped from rebutting her spouse Suzan's presumptive parentage of their son.


         ¶2 The facts are not in dispute. In October 2008, Kimberly and Suzan, a same-sex couple, legally married in California. After the couple decided to have a child through artificial insemination, Suzan unsuccessfully attempted to conceive using an anonymous sperm donor. In 2010, Kimberly underwent the same process and became pregnant.

          ¶3 During the pregnancy, Kimberly and Suzan moved to Arizona. In February 2011, they entered a joint parenting agreement declaring Suzan a "co-parent" of the child. The agreement specifically states that "Kimberly McLaughlin intends for Suzan McLaughlin to be a second parent to her child, with the same rights, responsibilities, and obligations that a biological parent would have to her child" and that "[s]hould the relationship between [them] end . . . it is the parties [sic] intention that the parenting relationship between Suzan McLaughlin and the child shall continue with shared custody, regular visitation, and child support proportional to custody time and income." Kimberly and Suzan also executed wills declaring Suzan to be an equal parent.

         ¶4 In June 2011, Kimberly gave birth to a baby boy, E. While Kimberly worked as a physician, Suzan stayed at home to care for E. When E. was almost two years old, Kimberly and Suzan's relationship deteriorated to the point that Kimberly moved out of their home, taking E. and cutting off Suzan's contact with him.

         ¶5 Consequently, in 2013, Suzan filed petitions for dissolution and for legal decision-making and parenting time in loco parentis. During litigation, Suzan challenged the constitutionality of Arizona's refusal to recognize lawful same-sex marriages performed in other states, and pursuant to A.R.S. § 12-1841, provided notice to the State of her constitutional challenge. The State intervened in the litigation.

         ¶6 After the Supreme Court held in Obergefell that the Fourteenth Amendment to the United States Constitution guarantees same-sex couples the fundamental right to marry, the State withdrew as a party, and the trial court ordered the case to proceed as a dissolution of marriage action with children because Suzan was a presumptive parent under A.R.S. § 25-814(A)(1). Based on Obergefell, the court reasoned that it would violate Suzan's Fourteenth Amendment rights not to afford her the same presumption of paternity that applies to a similarly situated man in an opposite-sex marriage. Additionally, the court held that Kimberly could not rebut Suzan's presumptive parentage under A.R.S. § 25-814(C) because permitting rebuttal would allow a biological mother to use the undisputed fact of a consensual, artificial insemination to force the non-biological parent to pay child support under A.R.S. § 25-501(B) while denying that same non-biological parent any parental rights. See A.R.S. § 25-501(B) ("A child who is born as the result of artificial insemination is entitled to support from the mother as prescribed by this section and the mother's spouse if the spouse either is the biological father of the child or agreed in writing to the insemination before or after the insemination occurred.").

         ¶7 Kimberly sought special action review in the court of appeals. That court accepted jurisdiction but denied Kimberly relief, concluding that, under Obergefell, § 25-814(A) applies to same-sex spouses and that Suzan is the presumptive parent. McLaughlin v. Jones, 240 Ariz. 560, 564 ¶ 14, 565-66 ¶ 19 (App. 2016). The court also reasoned that Kimberly was equitably estopped from rebutting Suzan's presumption of parentage under § 25-814(C). Id. at ¶ 20.

         ¶8 After the court of appeals issued its decision, another division of the court reached a contrary result in a different case. See Turner v. Steiner, 242 Ariz. 494 (App. 2017). A divided panel concluded that a female same-sex spouse could not be presumed a legal parent under § 25-814(A)(1) because the presumption is based on biological differences between men and women and Obergefell does not require courts to interpret paternity statutes in a gender-neutral manner. Id. at 498-99 ¶¶ 15-18. The dissenting judge argued that Obergefell mandates a gender-neutral interpretation of § 25-814(A)(1) and that affording equal rights of parentage would foster, instead of disrupt, the permanency and stability important to a child's best interest. Id. at 901 ¶ 25 (Winthrop, J., dissenting).

         ¶9 We granted review because the application of § 25-814(A)(1) to same-sex marriages after Obergefell is a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.


         ¶10 We review the constitutionality and interpretation of statutes de novo. State v. Stummer,219 Ariz. 137, 141 ΒΆ 7 (2008). "[T]he words of a statute are to be given their ordinary meaning unless it appears from the context or otherwise that a different ...

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