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Monica Lindstrom

Updated Jun 26, 2015 - 4:04 pm

Legally Speaking: Next gay rights battle in Arizona to focus on children, adoption

What does the Supreme Court’s decision mean for Arizona?

Arizona legalized same-sex marriage on Oct. 17, 2014. As such, the SCOTUS decision really just cements the validity of Arizona’s decision.

The more important question is what happens from here. There are several issues that the Arizona courts, legislators and attorneys will have to wade through.

The first issue is child custody and visitation issues.

Let’s say a same sex couple has a child and decides to divorce. One parent is the biological parent and the other is not. If both of their names are on the birth certificate the procedure will be much easier and akin to heterosexual couples.

However, if both names are not on the birth certificate it will get a bit messier. The non-biological parent can stand in the shoes of a parent (in loco parentis) and fight for visitation and for custody. The non-biological parent will have a higher burden to prove to the court that they have the right to get visitation and custody. The biological parent has a Constitutional right to raise their child but a non-biological parent does not.

This issue exists at times for heterosexual couples but will exist almost every time for same-sex couples. It will be interesting to see how Arizona sorts these issues out.

A second issue is adoptions.

Let’s change the hypothetical to a same-sex couple who wants to adopt a child. Several months ago Maricopa County Attorney Bill Montgomery came out and stated his interpretation of Arizona law is that his office has no legal responsibility to assist in same-sex adoptions though his office will continue to assist in heterosexual adoptions.

It will be interesting to see if Montgomery changes his stance in light of the landmark decision.

The third issue is child support. Take the hypothetical that the same-sex couple is married and has a child.

The non-biological parent is not on the birth certificate but helped raise the child. Will they have to pay child support? No.

So, we could see the laws change to deal with this issue as well.

Bottom line, Arizona was actually ahead of other parts of the country regarding same-sex marriages, however, our legislators were not.

There are things that will need to be changed in Arizona to deal with the implications of today’s decision but they will not happen overnight. Attorneys will have to fight over the issues in court and the people will have to force the legislators to act.

It won’t be a quick process but at least Arizona has a head start.


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