Doty-Perez v. Doty-Perez

          Appeal from the Superior Court in Maricopa County No. FN2015-001747 The Honorable Suzanne E. Cohen, Judge

          Berkshire Law Office, PLLC, Phoenix By Keith Berkshire, Erica Gadberry Counsel for Respondent/Appellant

          Woodnick Law, PLLC, Phoenix By Leslie A. Satterlee, Markus W. Risinger Counsel for Petitioner/Appellee

          Chief Judge Samuel A. Thumma delivered the opinion of the Court, in which Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.

          OPINION

          THUMMA, CHIEF JUDGE

         ¶1 In this family law case, Tonya L. Doty-Perez (Tonya) appeals from an order finding Arizona Revised Statute (A.R.S) section 25-409(C)(2) (2018) unconstitutional as applied. For the reasons that follow, this court vacates that finding and remands for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         ¶2 Tonya and Susan Doty-Perez (Susan) were married in Iowa in 2011, at a time when Iowa recognized same-sex marriage but Arizona did not. Later, the couple moved to Arizona and decided to adopt four children. At that time, Arizona law did not allow joint adoption by a same-sex couple. Accordingly, Tonya alone adopted the four children after the parental rights of the biological parents had been terminated. Although Tonya and Susan jointly parented the children, and the children treat them both as parents, Tonya was and is the only legal parent of the children. See A.R.S. § 25-401(4) ("'Legal parent' means a biological or adoptive parent whose parental rights have not been terminated.") (2018).^[1]

         ¶3The relationship between Tonya and Susan later deteriorated and, on April 14, 2015, Susan filed a Petition of Dissolution of Marriage.^[2]After Obergefell v. Hodges, 135 S.Ct. 2584 (2015) (holding "same-sex couples may exercise the fundamental right to marry"), Susan sought (1) rights "as a parent" to the children and, alternatively, (2) third-party visitation rights. The superior court considered these requests in that order.

         ¶4 The superior court denied Susan's request to be declared a legal parent in October 2015, a decision this court affirmed in December 2016. See Doty-Perez v. Doty-Perez, 241 Ariz. 372 (App. 2016) ("Doty-Perez I"). The Arizona Supreme Court denied Susan's petition to review Doty-Perez I in August 2017 and the mandate issued in September 2017.

         ¶5 Susan sought third-party visitation under A.R.S. § 25- 409(C)(2), ^[3] which allows "a person other than a legal parent" to seek "visitation with a child." As applied, that statute states a court

may grant visitation rights during the child's minority on a finding that the visitation is in the child's best interests and that . . . [t]he child was born out of wedlock and the child's legal parents are not married to each other at the time the petition is filed.

Id. (emphasis added). Tonya moved to dismiss Susan's request, arguing that, because the children were adopted, they were not "born out of wedlock." See Sheets v. Mead, 238 Ariz. 55, 56 ¶ 1 (App. 2015) (holding adoption changes a child's "legal status" to being "born in wedlock" under A.R.S. § 8-117(A)).^[4] Accordingly, Tonya argued Susan could not make the showing required for third-party visitation under A.R.S. § 25-409(C)(2).

         ¶6 Tacitly agreeing Susan could not make the required showing that the children were born out of wedlock for visitation under A.R.S. § 25-409(C)(2), the superior court found the statute unconstitutional as applied. Using the rational basis test, the court found the statute treats "adopted children differently than natural born^[5] children for third party visitation." The court concluded that "§ 25-409(C)(2) treats adopted children and natural born children differently and that difference in treatment" contravenes "the Legislature's intent in drafting § 8-117(A) to put adopted children and naturally born children on equal footing in matters of law." Citing McGowan v. Maryland, 366 U.S. 420, 425 (1961), the court concluded that

denying adopted children the love, care, and other benefits that may come with a third party visitation when a natural born child in the same position stands to receive those benefits does not pass the rational basis test. Whether a child is adopted or not adopted is "wholly irrelevant to the achievement of the State's objective," . . . of granting third party visitation rights to individuals who are not likely to harm children. [Thus] [a]n individual seeking third party visitation rights cannot even get their foot in the door to make a case for why they should be able to visit children they helped raise is evidence that this statutory scheme is "wholly irrelevant to the achievement of the [S]tate's objective."

         This court has jurisdiction over Tonya's timely appeal from the ruling pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. ...