Board Certified Family Law Specialist Matt Arnold answers the question: “What can I do to gain custody of my child in North Carolina?”
The U.S. Supreme Court recently handed down an important victory for supporters of gay parental rights. How did they do that? By remaining silent. The case before the court concerned a lesbian couple in Arizona fighting over custody of their son. The case has been slowly making its way through the court system for years. An appeal was filed to the U.S. Supreme Court after a landmark decision last year by the Arizona Supreme Court, which abolished discrimination between gay and straight couples under state law. The worry by some was that the U.S. Supreme Court would agree to hear the case and potentially disagree with the state court. That did not happen, instead, the Court rejected the appeal, giving no reason for the decision.
The case at issue concerns a fight between Kimberly and Suzan McLaughlin, a same-sex couple now residing in Arizona. The two were legally married in California back in 2008 and chose to have a child together through artificial insemination soon thereafter. Kimberly became pregnant in 2010, meaning the child was biologically the product of Kimberly and a sperm donor. The child was born in 2011 and Suzan, who was not biologically related to the child, stayed home to care for the child while Kimberly went back to work. The two also executed a joint-parenting agreement and executed mirror wills, two documents that stated the two were equal parents to the child.
Fast-forward a few years and the marriage began to fall apart. Kimberly eventually moved out, taking the child with her. Suzan filed for divorce and, in doing so, sought parenting time. Suzan and her attorney knew that a problem would be her lack of a genetic relationship to the child and had to get creative in her request for custody. Her argument at the time was that an Arizona law then on the books said that any child born to a woman within 10 months of her marriage should be presumed to be biologically related to the father. This is known as the presumption of parentage rule and it is used frequently in cases involving heterosexual couples, but had never been previously applied to same-sex couples.
Kimberly’s attorney argued that there are legal and biological reasons why the Arizona law should not be applied to same-sex couples. He noted that by definition, two women cannot be biological parents to a child and the fact that a court could authorize such a wildly different interpretation of a clearly written law should be viewed as wrong.
The argument was not convincing to the Arizona Supreme Court, which sided with Suzan. In its 2017 ruling, the Court noted that the landmark U.S. Supreme Court ruling granting marriage equality to all couples did more than just overturn existing laws limiting marriage to one man and one woman. The decision also required courts to grant same-sex couples rights to marriage on an equal footing with opposite-sex couples. In this case, that meant that the Arizona law that had been written to grant a presumption of paternity to men would now be rewritten by judicial decree to allow for a presumption of paternity for any couple.
Though the Supreme Court refused to hear the appeal, it is important to understand that this case is not yet over. Kimberly and Suzan must still work out some kind of custodial arrangement or a judge in their local Superior Court will be forced to issue a ruling on the subject. However, by remaining silent, the Supreme Court implicitly supported the idea that gay couples should be entitled to the same parenting rights as opposite-sex couples when they get divorced.
If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
The family law practice group at Arnold & Smith, PLLC includes two Board-Certified Family Law specialists and several attorneys with many years of family law experience that are committed to providing a powerful voice to individuals facing the often-tumultuous issues in this area of law. The range of issues our family law clients may be facing include pre- and post-nuptial agreements; separation agreements; post-separation support; child support (both temporary and permanent); absolute divorce; divorce from bed and board; military divorce; equitable distribution of assets; child custody (both temporary and permanent); retirement benefits and divorce; alimony and spousal support; adoption; and emancipation. Because this area of the law is usually emotionally charged and complicated, the family law attorneys at Arnold & Smith, PLLC act with the utmost dedication to ensure that each client understands his or her options, and then act to achieve the best result possible for that client’s particular situation.
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