Landmark custody case asks Supreme Court to rule again

On Behalf of | Jan 23, 2018 | Child Custody |

It’s been three years since the Supreme Court’s historic ruling on same-sex marriage rights. Now, the court is being asked to consider the rights of same-sex parents to custody — or the lack thereof.

Attorneys for the biological mother of a child conceived and born to a legally married same-sex couple have asked the top justices to hear arguments as to why the mother’s former spouse shouldn’t be allowed shared custody.

The case was the focus of a massive political attention in Arizona where conservative lawmakers rushed through policies designed to prevent the judge’s ultimate ruling: A nonbiological same-sex parent was entitled to the same rights as a presumptive father, regardless of gender.

In this case, since the couple was legally married, that entitled the nonbiological mother presumptive parenthood. In turn, that opened the door for her to receive shared custody and visitation with the couple’s child over the biological mother’s objections.

The biological mother’s attorneys have asked the Supreme Court to overturn that decision. They say that despite the Supreme Court’s rulings on same-sex marriage and equal rights for same-sex couples, nothing in those rulings allows the courts to ignore the wording of state law. They say that allowing the ruling to stand ignores both the reason that the state law was worded and basic biology because it declared the nonbiological mother equal to the child’s “father” under law — regardless of the law’s wording.

In essence, the judge in Arizona said that it was only reasonable to afford a nonbiological mother the same rights as a nonbiological father when the couple was married and the child born to the marriage conceived by artificial insemination.

The counter-argument is that biology and the legislation’s intent to stop precisely this sort of ruling by using gender-exclusive language should trump everything else. In addition, the argument is made that if the Arizona courts don’t like the law, they need to let legislature change it — not take on the responsibility for themselves.

It remains to be seen whether or not the Supreme Court will hear the case. If it does, any decision will have national repercussions on same-sex child custody rights.

Source:, “Supreme Court asked to rule in divorced gay couple’s child custody case,” Jan. 15, 2018


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