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Do paternity laws apply to gay and lesbian couples?

Just as same-sex marriage inevitably led to same-sex divorces, same-sex marriage inevitably led to custody disputes among gay and lesbian couples.

An Arizona woman is asking the U.S. Supreme Court to affirm her claim for sole custody of her son. Such a ruling would ripple nationwide, muddying the waters and potentially undermining hard-fought LGBT rights.

Are LGBT parents different under the law?

Kimberly Laughlin and Suzan McLaughlin married in California in 2008 when same-sex marriage was briefly legal. They agreed to have a child together via artificial insemination. Kimberly conceived in 2010, using her own eggs and donated sperm. After moving to Arizona, they further cemented their status with a joint parenting agreement and dual wills naming the other as co-parent.

But two years later, Kimberly moved out with the boy. She filed for divorce, refusing to acknowledge shared custody or even allow visitation. That’s where the law gets dicey and the Supreme Court may need to step in.

State laws may not recognize non-biological parents

Arizona law declares that the husband is the presumed parent of a child born within 10 months of a marriage. 

In contesting her ex-wife’s custody rights, Kimberly McLaughlin is relying on the letter of the law. Her argument, in a nutshell, is that Suzan should not be recognized as a parent because she is the wrong gender – Arizona statute only mentions “men” and “paternity.”

The Arizona Supreme Court sided with Suzan, reading the U.S. Supreme Court’s gay marriage ruling as extending to all the collateral benefits of marriage, including parentage and child custody. But Kimberly’s appeal contends that the Arizona Supreme Court overstepped its authority by essentially rewriting state statutes or creating new laws.

What would happen in New Jersey?

A few states, including New Jersey, specifically declare a husband to be the biological parent if his wife conceives through artificial insemination. By proxy, a same-sex spouse like Suzan McLaughlin would be entitled to the same presumption. On the other hand, New Jersey statute does not specifically spell that out. If nothing else, it might force a lesbian mom to go to court to crystallize her parental status.

Apparently, the fight for LGBT equality under the law is not over. There are many nuanced issues that may arise, from custody and inheritance rights to equitable distribution and spousal support.