388 P.3d 9
Ariz. Ct. App.2016Background
- Susan and Tonya married in Iowa in 2011 and lived in Arizona. Tonya alone adopted four special-needs children between 2012–2014; the couple intended to parent together but could not jointly adopt under Arizona law at the time.
- Susan asked to adopt as a second-parent in April 2014; Tonya refused; Susan moved out and never filed an adoption petition.
- After federal decisions striking down Arizona’s bans (Latta, Majors) and the U.S. Supreme Court’s Obergefell, Susan amended her dissolution petition (2015) to ask the family court to declare her a legal parent of the four children.
- The family court found Susan would have jointly adopted but did not file for adoption after marriage-equality rulings and denied her request to be declared a legal parent.
- Susan appealed, arguing she should be deemed a legal parent either by modifying the adoption decrees (nunc pro tunc/retroactive effect) or by recognition as a de facto parent; she also asserted due process and equal protection violations. The court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Susan) | Defendant's Argument (Tonya) | Held |
|---|---|---|---|
| Whether Obergefell requires retroactive recognition of spouse as adoptive parent / modification of adoption decrees | Obergefell means Arizona must treat the 2011 marriage as valid and, but for the prior ban, Susan and Tonya would have jointly adopted; courts should modify adoptions to reflect that intent | Obergefell does not mandate retroactive creation/modification of adoptions; adoption occurs only by statutory process and requires a petition/consent | Rejected — Obergefell does not require retroactive modification of adoption decrees; adoption is statutory and Susan never petitioned to adopt. |
| Whether a married non-adoptive spouse of an adoptive parent is presumptively a legal parent under Arizona law | A.R.S. § 8-103/§ 8-117 and marital presumptions support treating Susan as a second parent given the marriage and intent to jointly parent | Statutes do not create a presumption; adoption is the statutory route to parental status and § 8-117 applies only to adoptive parent-child relationship | Rejected — Arizona statutes do not presumptively confer parental status on a spouse who did not adopt; legal parentage requires an adoption order. |
| Whether Arizona recognizes the de facto parent doctrine to confer full parental rights equivalent to legal parents | Court can use equitable de facto-parent doctrine (as in In re Parentage of L.B.) to grant Susan full parental status based on caregiving and intent | Arizona has no statutory recognition of de facto parent doctrine; prior Arizona authority rejects equating de facto parents with legal parents | Rejected — Arizona does not recognize de facto parenthood as creating full legal parental status. |
| Whether a nunc pro tunc or equitable remedy can be used to retroactively cure the prior constitutional bar | A nunc pro tunc or equitable remedy should be used to retroactively record the joint adoption to effect intent and equal protection | A nunc pro tunc is not an appropriate remedy to create an adoption; courts lack authority to retroactively manufacture statutory adoption requirements | Rejected — nunc pro tunc is not a viable remedy to create retroactive legal parentage. |
Key Cases Cited
- Obergefell v. Hodges, 576 U.S. _, 135 S. Ct. 2584 (recognition and licensing of same-sex marriages required by Fourteenth Amendment)
- Latta v. Otter, 771 F.3d 456 (9th Cir.) (federal appellate decision invalidating nonrecognition of same-sex marriages)
- Majors v. Horne, 14 F. Supp. 3d 1313 (D. Ariz.) (district court enjoining Arizona’s same-sex marriage ban)
- In re Parentage of L.B., 122 P.3d 161 (Wash. 2005) (recognition of de facto parent doctrine in Washington)
- Egan v. Fridlund-Horne, 221 Ariz. 229, 211 P.3d 1213 (App. 2009) (Arizona Court of Appeals criticizing L.B. and rejecting parity of de facto parents with legal parents)
- Sheets v. Mead, 238 Ariz. 55, 356 P.3d 341 (App. 2015) (discussing in loco parentis visitation; distinguishable on parental-status issue)
- Miller v. California, 355 F.3d 1172 (9th Cir. 2004) (discussing limited nature of de facto parent rights)
- Olvera v. County of Sacramento, 932 F. Supp. 2d 1123 (E.D. Cal. 2013) (noting de facto parent rights are not equal to legal parents)