Supreme Court of Arizona.

Kimberly MCLAUGHLIN, Petitioner,

v.

The Honorable Lori B. JONES, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent Judge.

Suzan MCLAUGHLIN, Respondent Real Party in Interest.

No. CV-16-0266-PR.

May 17, 2017.

Appeal from the Court of Appeals, Division 2 Cause No. 2-CA-SA 2016-0035

Amicus Curiae Brief of Arizona Family Law Practitioners

Gregg R. Woodnick, Markus W. Risinger, Woodnick Law, PLLC, 1747 E. Morten Ave., #205, Phoenix, AZ 85020, (602) 449-7980, Filing on Behalf of Amici.

INTEREST OF AMICUS CURIAE

The undersigned amici curiae (hereafter “Practitioners”) are Arizona attorneys. Practitioners collectively represent decades of experience in family and juvenile law actions, including (of relevance) : establishment of paternity, dissolutions of marriages, adoptions, artificial insemination paternity, putative father registration, and establishment or termination of parental rights.

Practitioners represent Arizona residents in various capacities that will be heavily impacted by the Court’s decision in this matter. Practitioners believe that the issues raised in this matter have the potential to dramatically change the way that trial courts view paternity and parentage issues under the marital presumption statute, A.R.S. § 25-814, and could destabilize countless families and courts who relied on the prevailing understanding of parental rights actions before this case. Moreover, Practitioners believe that this Court’s ruling could begin a new type of parental rights action, in which a parent seeks to disestablish paternity without attempting to establish paternity for another individual. This Court’s ruling implicates express statutory policies promoting two-parent families and children’s best interests in parentage actions.

Collectively, Practitioners can provide insight that the parties cannot through their joined experience in advising Arizona residents and trying cases involving  unique permutations of paternity and parentage issues. Practitioners assert that Division 2’s ruling below correctly interpreted Arizona law.

INTRODUCTION

Innumerable couples in Arizona use assisted reproduction to create their families. Generally speaking, those couples visit a reproductive clinic and sign a standardized mutual consent form indicating that they intend to share parental rights and obligations and raise the child together as though born to them through unassisted means. Practitioners understand the marital presumption of A.R.S. § § 25-814(A)(1) and (A)(4) to mean that a child born to a married couple under the described circumstances is legally the child of both parents notwithstanding the child’s biological relationship (or lack thereof) to the parents.

Based on that understanding, Practitioners have advised Arizonans that there is no mechanism to disestablish paternity of a child born during the marriage unless the party seeking to disestablish can allege the existence of another putative parent. Accordingly, Practitioners do not routinely ask whether a child born to a married couple was conceived through assisted reproduction techniques (e.g. artificial insemination) because the marital presumption guarantees that the married couple are the child’s parents.

STATEMENT OF FACTS

Practitioners rely on the facts recited in the Division 2 decision and do not reproduce the recitation here for the sake of brevity.

ARGUMENT

I. The marital presumption of paternity protects the parental rights of a person whose spouse conceives and bears a child via artificial insemination.

Practitioners have observed in Arizona courts and advised clients that the marital presumption of paternity protects the parental rights of a person whose spouse bears a child using assisted reproduction techniques. A contrary reading would conflict with decades of practical precedent and disturb basic principles of family autonomy and construction without justification in the law.

II. A plain reading of A.R.S. § 25-814 requires the court to find that the marital presumption applies in this case.

In Practitioners’ experience, trial courts have historically treated children born through artificial insemination to married couples as children of the marriage without inquiring as to paternity. A.R.S. § 25-814(A)(1) requires as much, stating that a child born during a marriage or within ten months after the marriage is dissolved is presumed to be the child of both spouses. Additionally, in the typical assisted reproduction scenario in which both parties consent in writing to the procedure, A.R.S. § 25-814(A)(4) also treats the child as born to both spouses. A.R.S. § 25-501(B) also corroborates this result, stating that a child born via artificial insemination is entitled to support from both spouses if the mother’s spouse is the biological father or agreed in writing to the insemination.

 The trial court need not, and does not, inquire further into paternity. In fact, it is not clear that there even exists a procedural mechanism for the court to so inquire unless the mother alleges a different putative father. Instructions to disestablish the marital presumption without a putative father in position to be given the support obligation are not given in Title 25, and would certainly conflict with public policy requiring that the courts guarantee the support of two parents to a child whenever possible. See A.R.S. § 25-103.

No plain reading of A.R.S. § 25-814, especially in the context of Title 25 as a whole, would support the conclusion that a married person who consented to have a child by artificial insemination with a spouse is not also a legal parent of the child.

III. The genetic testing statute does not contemplate disestablishment of paternity without a contemporaneous allegation of paternity toward a putative parent.

The genetic testing statute, A.R.S. § 25-816, does not even permit genetic testing except if either the mother or the alleged father sets forth the facts establishing a reasonable possibility of the requisite sexual contact between the parties – put simple, the statute can only be used to seek genetic testing to establish paternity, not disestablish it. A.R.S. § 25-816(B) and A.R.S. § 25-814(C) indicate that a genetic test purporting to confirm paternity may nonetheless be rebutted by clear and convincing evidence, and the court may determine which paternity presumption is “based on weightier considerations of policy and logic” when choosing which to apply. Clearly, the marital presumption is not limited by biological connection to the child, and it is not difficult to imagine scenarios in which Arizona courts will-and have-establish paternity notwithstanding genetic evidence to the contrary if policy and logic control. See also A.R.S. § 25-803(A)(1)-(5) (allowing mother or father, but not putative father, to initiate paternity action); In re Marriage of Worcester, 192 Ariz. 24, 960 P.2d 624 (1998) (finding that the trial court is not required, and may not be allowed, to permit the marital presumption to be rebutted unless the mother seeks child support from another.

IV. A result contrary to the decision below would cause chaos in Arizona trial courts and directly conflict with express statutory and public policies.

Practitioners do not even inquire whether a child born during a marriage was conceived through artificial insemination or through natural means because it is generally understood that Arizona law does not make a meaningful distinction. Trial courts understand that married spouses receive the benefit of the marital presumption notwithstanding biological connection to the child, such as in cases where the parents conceived through artificial insemination with a donor, and do not require the married parent to adopt his own child.

None of the undersigned Practitioners have encountered a case in which a wife attempted to disestablish her husband’s parental rights to a child conceived and born through artificial insemination because he is not biologically related to the child. In fact, without a putative parent in waiting, Practitioners have never encountered a case in which the trial court made the requisite best interests findings necessary for a parent to disestablish their spouse’s paternity (thereby leaving the child with only one legal parent).

If the Supreme Court reverses the decision below, then trial courts will be required to reconcile this new precedent with decades of contrary practice. The result will be to allow parents to disestablish paternity against their spouses in cases in which the parents used assisted reproduction resulting in one parent not having a biological connection to the child. It is even more unclear what would happen if neither spouse is a biological parent-a scenario that occurs when there are donors for both sperm and egg. What is clear, however, is that a ruling contrary to the decision below would permit a parent to disestablish her spouse’s paternity, notwithstanding the child’s relationship with the presumptive father, for any reason or none at all. This result could send the trial courts into chaos and open an entirely new type of litigation that exists only because of spite-and which contradicts Arizona public policy, undermines the rights of autonomous families to exercise assisted reproduction methods when consciously deciding to have children, and ignores the best interests of children. This cannot be the result that the legislature, nor public policy generally, intended.

CONCLUSION

Practitioners, in their collective experience and as amici curiae, conclude that the Supreme Court must affirm the Court of Appeals’ decision in this matter because the decision below is both consistent with how Arizona law is currently understood and aligns with the overall statutory schemes in place. Affirming the decision below will respect family autonomy and ensure that children receive the best possible opportunity to enjoy the affection and support of two parents in assisted reproduction scenarios.