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Arizona Appeals Court Rejects Lesbian Co-Parent’s Bid to Be Recognized as Adoptive Parent Based on Her Spouse’s Adoption When They Were Married

Posted on: January 29th, 2017 by Art Leonard No Comments

The Court of Appeals of Arizona, Division 1, affirmed a ruling by Maricopa County Superior Court Judge Suzanne E. Cohen, holding that the U.S. Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), does not require Arizona to retroactively deem a woman to be a legal parent of children adopted by her same-sex spouse at a time when Arizona did not recognize their same-sex marriage or allow second-parent adoptions.  Judge Jon W. Thompson wrote the opinion for the unanimous panel in Doty-Perez v. Doty-Perez, 2016 WL 7477722 (Dec. 29, 2016).

Susan and Tonya began living together in October 2010. Tonya adopted a child, who is not the subject of this appeal, two months later.  Susan and Tonya were legally married in Iowa in July 2011, but at all relevant times for this case were residents of Arizona.  After their marriage, they agreed that Tonya would adopt four special needs children from foster care, intending to raise the children together as co-parents.  If Arizona had allowed for same-sex couples jointly to adopt children, they would have done so, but at the time of the adoptions, Arizona did not recognize their Iowa marriage and prohibited same-sex partner adoptions.

Their relationship later eroded. Susan alleges that on April 8, 2014, as their relationship was ending, she asked Tonya for consent to adopt the children through a second-parent or step-parent adoption, but Tonya refused.  Susan moved out of the marital residence on April 12, 2014, and did not file a petition to adopt the children, which would have been futile without Tonya’s consent.  On October 7, 2014, the 9th Circuit, which covers Arizona, struck down same-sex marriage bans in Latta v. Otter, 771 F.3d 456, and on October 17, 2014, in Majors v. Horne, 14 F. Supp.3d 1313 (D. Ariz.), the federal district court struck down Arizona’s ban and enjoined its enforcement.  The state decided not to appeal the district court’s order.  Susan subsequently filed a “Petition for Dissolution of Non-Covenant Marriage Without Minor Children” and requested in loco parentis visitation rights with the children, on April 14, 2015, subsequently amending her petition to “Marriage WITH Children” and requesting joint legal decision making and parenting time.

Just months later, the U.S. Supreme Court decided Obergefell, holding that same-sex couples had a fundamental due process and equal protection right to marry and to have out-of-state marriages recognized, and Susan followed up in July 2015 with a new “Motion to Find Petitioner a Parent of Minor Children and Memorandum in Support of Amended Petition for Dissolution With Children.”  Judge Cohen denied Susan’s petition to be declared a legal parent of the four children, finding that although she had proven by a preponderance of the evidence that the parties would have jointly adopted the children had Arizona allowed such adoptions, Susan had failed to file a second-parent adoption request after October 17, 2014, when Arizona came under an obligation to recognize the Iowa marriage and afford Susan the rights that a step-parent would have to seek to adopt her spouse’s children, and that Tonya, the legal parent, had refused to consent to a step-parent adoption by Susan, as she had the right to do.

The appellate panel agreed with Tonya’s argument that there was no support in Arizona case law for the concept of de facto parent, thus disposing of one of Susan’s arguments out of hand. (The Maine Supreme Judicial Court issued a contrary opinion on the de facto parent issue just weeks later in Thorndike v. Lisio, 2017 Me. LEXIS 10, 2017 ME 14, 2017 WL 218165 (Jan. 19, 2017).)

“We find the dispositive issue is whether, as a matter of law, if a married person adopts a child, that person’s spouse is also deemed or presumed to be a legal parent, with all the legal rights and obligations attached to that status, merely because the couple intended to adopt together,” wrote Judge Thompson. “We think not.”

In light of Obergefell, Susan could effectively argue that Arizona’s failure to recognize the women’s Iowa marriage or to allow legally-married same-sex couples to adopt at the time Tonya adopted the children was a violation of the 14th Amendment, and the court conceded that point.  “However,” wrote Thompson, “we do not read Obergefell to support Susan’s paramount contention that the right of same-sex couples to marry and have their marriages recognized under the Fourteenth Amendment of the U. S. Constitution requires that states retroactively modify adoptions by individuals in same-sex marriages who would have jointly adopted, if they had been allowed to do so.”

The court held that applying ordinary rules of statutory construction to the Arizona adoption law, Susan was “not entitled to parental status or full legal parental rights under any of the relevant statutory provisions,” because under Arizona’s statute there is no presumption “granting legal parental rights or obligations to a non-adoptive spouse merely because of her marriage to a person who has adopted a child.  To be vested with such rights and to be so beholden,” Thompson continued, “an individual, either separately, or, if married, jointly with another individual, must formally adopt the child.  To be sure, in light of Obergefell, [the statute’s] language that ‘a husband and wife may jointly adopt’ must be interpreted to also mean that ‘a wife and wife’ or ‘husband and husband’ may jointly adopt.  However, the adoption statute’s use of the permissive ‘may’ indicates there is no presumption of parentage for a non-adoptive spouse.  To apply such a presumption would be to ignore an adoptive parent’s spouse’s individual agency to decide whether to directly and deliberately assume the role of a legal parent by taking the steps necessary to establish a legal relationship with the adopted child.”

Thompson pointed out that the statute provides that upon adoption the adopting parent and the child have a legal parent-child relationship, but it does not state that upon adoption the child automatically has such a relationship with the adopting parent’s legal spouse, and that Susan’s attempt to get the court to adopt such a meaning would be contrary to the legislature’s intent in passing the statute. “Additionally,” wrote Thompson, “the clear interpretation of [the statute’s] definition of a legal parent is that, except in the case of biology, the only legal mechanism that may establish legal parenting status and attach the associated rights and obligations is an order of adoption.  Thus, we cannot order legal parent status for Susan, despite the fact that the parties intended to adopt the children together, but did not only because it was legally impermissible at the time, and Tonya later refused to consent to Susan petitioning for adoption of the four children, prior to their divorce and after same-sex adoptions were legal in Arizona.”

Thompson asserted that the court was “without authority to confer legal parent status on Susan when she never actually petitioned the court to acquire that status while she was still married to Tonya.” (Emphasis in original)  “While we empathize with Susan because our holding leaves her without parental rights and obligations for four children she loves, provided and cared for,” concluded Thompson, “the relevant statutes do not support a contrary conclusion.”

Susan is represented by Leslie A.W. Satterlee and Markus W. Risinger of Gregg R. Woodnick PLLC, Phoenix. Tonya is represented by Keith Berkshire and Megan Lankford of Berkshire Law Office PLLC, also in Phoenix.  Susan could seek review from the Arizona Supreme Court.

Hawaii Supreme Court Allows Gay Dad to Seek Custody as De Facto Parent

Posted on: November 17th, 2016 by Art Leonard No Comments

The five members of the Hawaii Supreme Court unanimously ruled on November 3 in A.A. v. B.B., 2016 Haw. LEXIS 280, that a gay dad can seek joint custody of the kids that were adopted by his partner during their relationship and who he helped to raise. The opinion by Justice Richard W. Pollack reversed a trial judge’s ruling that a “de facto” parent had to prove that there was a compelling state interest to justify letting the court use the “de facto” provision of the family law statute in order to overcome the adoptive parent’s rights.


Justice Pollack identified the parties by initials in his opinion for the court. A.A. and B.B. began their relationship in March 2009 and concluded it in October 2013.  The child, a girl, was born in 2011.  B.B. is the biological grandfather of the child, according to Judge Pollack, and they decided that B.B. would adopt the child.  A.A. and B.B. jointly made a decision to raise the child together.  They lived together with the child and B.B.’s teenage son from March 2009 through October 2013.  They jointly decided on the child’s name and until they split up they shared parenting responsibilities.  The child called A.A. “Daddy” and B.B. “Papa.”  They planned to have A.A. also adopt the child, but that plan was never completed.


After A.A. and B.B. separated, they made a written co-parenting agreement, dividing up residential custody on specified days of the week. B.B. sent an email to A.A. stating that if anything ever happened to him he wanted A.A. to have custody of the child.  However, in April 2014 B.B. sent a letter to A.A. stating that the agreement was “revoked, as this was B.B.’s parental right.”


A.A. went to court seeking joint custody, alleging that he met the statutory requirement of being wholesome and fit to raise the child. Indeed, A.A. argued that he had “de facto” joint custody based on his role and relationship with the child, as well as the “stable and wholesome” home he could provide.  The relevant statute provides that “Custody may be awarded to persons other than the father or mother whenever the award services the best interest of the child.  Any person who has had de facto custody of the child in a stable and wholesome home and is a fit and proper person shall be entitled prima facie to an award of custody.”


During a custody hearing, B.B.’s expert witness testified about psychological and developmental problems concerning B.B.’s son and the son’s interactions with A.A., and B.B.’s counsel raised hypothetical questions about “anger management” problems for A.A., which were objected to. This doctor testified that she “would have concerns about Child having a relationship with A.A.,” and that she didn’t think the Child would be harmed by termination of her relationship with A.A.


On the other hand, an expert witness offered by A.A. testified favorably about A.A. as a parent and the home he provided for the Child, and opined that termination of the Child’s relationship with A.A. “would result in immediate-term and long-term damaging psychological consequences to the child. This expert also testified the while he was aware of sex abuse allegations involving A.A., he did not believe that A.A. posed a threat of abuse to the Child, “be it sexual, physical or emotional abuse or neglect.”

The trial judge concluded that A.A. did not have standing as the Child’s “psychological parent” to seek custody because the parties had not married, even though same-sex marriage had become available in Hawaii prior to the termination of their relationship. Although the judge concluded that the statutory provision on third party de facto parents could apply to the case, it concluded that A.A. failed to demonstrate “by strict scrutiny a compelling state interest as to why this ‘de facto’ section should apply to him when in fact the parties were not married, and when the options of civil union or marriage were unavailable.”


The Supreme Court concluded unanimously that the trial judge had misapplied the statute. Although A.A.’s evidence addressed all the factors spelled out in the statute for deciding whether a de facto parent was entitled to a custody award, the trail court made no explicit determination whether A.A. had satisfied those factors.  The court held that the trial judge incorrectly placed a burden on A.A. to demonstrate the constitutionality of the de facto parent provision, apparently based on a misinterpretation of Troxel v. Granville, a 2000 U.S. Supreme Court ruling striking down a state law that opened up the possibility of third party custody to any adult who could satisfy a court that it was in a  child’s interest to award custody to the third party, regardless of objections by a child’s legal parent.


The Supreme Court has ruled that natural or adoptive parents do have constitutional due process rights, liberty interests, regarding their right to raise their children without undue state interference. In Troxel, a mother whose ex-husband had committed suicide was fending off an attempt by her late husband’s parents to obtain court-ordered trial visitation, when the mother wanted to retain control over when and how the grandparents would have contact.  The Supreme Court struck down the state law in that case as “breathtakingly broad” and inadequately protecting the rights of the child’s legal parent.


Justice Pollack wrote that this case does not directly implicate the issues decided by the Supreme Court in Troxel. After engaging in an extended discussion of the Troxel decision and of subsequent Hawaii cases, the court concluded that this case, involving a de facto parent, presented different issues.  “In this case, B.B. voluntarily allowed A.A. to share physical custody of Child in addition to sharing the duties and responsibilities for parenting child, and thus the circumstances do not implicate the Hawai’I Constitution’s right to privacy” as was implicated in cases like Troxel and similar Hawaii cases involving custody or visitation claims by grandparents.


The court rejected any argument by B.B. that the state’s de facto parent custody statute was unconstitutional, or that A.A. could not seek joint custody without proving the constitutionality of that statute.   Wrote Pollack, “because B.B. permitted A.A. to share physical custody of Child in addition to the parenting responsibilities and duties with regard to Child, B.B. does not have a protected privacy interest in excluding A.A. from Child’s life under the Due Process Clause of the 14th Amendment or the Hawai’i Constitution’s due process and privacy protections.  As such, B.B. has not demonstrated that the application of the [de facto parent statute] under the circumstances of this case would implicate his parental rights protected under the federal or Hawai’i constitutions.”


Turning to the facts of this case, the court said that the “de facto presumption” of custody created by the state would apply “when the nonparent custodian is able to demonstrate that he or she (1) has had ‘de facto custody’ of the child (2) in a stable and wholesome home and that (3) the custodian is a fit and proper person.”


As the court found that the family court “misapprehended the law” and that “the plain language. . . contemplates standing to seek custody when a person has had ‘de facto custody’ of a child and meets the other requirements,” the case had to be sent back to the family court, with A.A.’s standing to seek custody established, so that the court could make a determine whether it would be in the best interest of the child to award joint custody to A.A.


A.A. was represented by Michael S. Zola. B.B. was represented by Brian J. De Lime, Francis R. Alcain, and Justin P. Haspe.