An Honest And Smart Approach To Family Law

Who gets custody when a child’s same-sex parents aren’t married?

When the U.S. Supreme Court made its decision in Obergefell v. Hodges in 2015, many people rejoiced as this effectively made same-sex marriage legal in the United States. Unfortunately, the process of writing laws doesn’t happen overnight in our country.

In many cases, state legislatures had to comb through decades-old statutes to determine what applied and what needed to be rewritten. While some states were able to implement changes to their own family laws quickly, this didn’t happen so quickly in every state. In addition to months of waiting for legislators to pass new laws, same-sex couples also had to contend with oftentimes convoluted mazes of statutes that, to this day, have left more questions than answers.

Such is the case in Arizona when considering the subject of child custody when a couple is not married.

As is the case in most states, including here in Arizona, paternity needs to be established or a court order must be issued in order to affect child custody in cases where a couple is unmarried. If neither is done, then custody is awarded to the woman who gave birth to the child (Arizona Revised Statutes Title 13 Section 1302 (B)).

As you can imagine, the current state of the law creates a legal gray area is instances where same-sex parents, who have been happily living together for years, decide to separate. Though both parents may have an emotional attachment to their child and want a shared parenting arrangement, the current state of the law may not allow it, especially if a judge does not deem the arrangement to be in the best interests of the child.

Because of the complexity of family law cases, and the fact that there is still a legal gray area in many same-sex couple cases, legal representation is almost always advised when it comes to protecting the rights of parents in Arizona.