SUSAN M. DOTY-PEREZ, Petitioner/Appellee,
TONYA L. DOTY-PEREZ, Respondent/Appellant.
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
Judge Samuel A. Thumma delivered the opinion of the Court, in
which Presiding Judge Michael J. Brown and Judge Maria Elena
THUMMA, CHIEF JUDGE
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.
AND PROCEDURAL HISTORY
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
relationship between Tonya and Susan later deteriorated and,
on April 14, 2015, Susan filed a Petition of Dissolution of
Marriage.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.
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
Susan sought third-party visitation under A.R.S. § 25-
409(C)(2),  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)). Accordingly, Tonya argued Susan could
not make the showing required for third-party visitation
under A.R.S. § 25-409(C)(2).
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 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
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. ...