Money Talks | Dec. 18, 2014

By Melissa Myers and Michael J. Tucker, Dec. 18, 2014.

Melissa Myers: Now that same-sex marriages are legally recognized in Arizona, that must resolve a lot of problems for couples with kids living at home.

Michael J. Tucker: Well, those families are still pioneers on certain Arizona legal questions.

Myers: Some folks may be inclined to presume that being married to a legal parent of minor children gives some sort of parental rights with respect to the minor children.

Tucker: Legal presumptions can arise in that regard, particularly if the children are born during the marriage of the same-sex couple. But domestic relations lawyers are recommending that such couples also enter into a stepparent adoption.

Myers: Are the formalities of that process a little less burdensome and expensive than a second-parent adoption?

Tucker: Often, yes. Under Arizona law, the only couples that can adopt are married couples. Because of the change in Arizona law on Oct. 17, recognizing the marriages of same-sex couples, now those married couples are able to adopt in Arizona.

Myers: So, if one spouse adopts the other spouse’s child, that’s a stepparent adoption.

Tucker: Yes, it is. On the other hand, obtaining a second-parent adoption is and always has been a strategy for unmarried couples if they were able to arrange their lives to be able to adopt in another state. Second-parent adoptions can’t be legally done in Arizona. However, Arizona law does recognize those second-parent adoptions legally granted in other states.

Myers: So, couples planning to move to Arizona from other states who don’t want to get married can often arrange for a second-parent adoption if it’s available under the law of their home state.

Tucker: By and large, many couples in Arizona will be motivated to marry, if they want to formalize a parental relationship between one of them and the children of the other.

Myers: It sounds like the marriage itself won’t create that parent-child relationship, though. The couple would be wise to go through a stepparent adoption here in Arizona.

Tucker: Often, yes, and that’s especially true if it’s possible that the couple may later relocate from Arizona to some other state where their marriage isn’t legally recognized.

Myers: Yes, there are still about 15 states where same-sex marriage is not legal.

Tucker: So it’s important to recognize that a legal marriage does not automatically create a legal relationship between the spouses and each other’s children who were born prior to the marriage. As noted by attorney Claudia Work, there are even concerns about recognition of parentage of children born during the marriage.

Myers: That can be the case even though the couple may be raising the children together and regard the children as “their” children.

Tucker: Sometimes it’s difficult for a parent to swallow, having to go through an adoption process in order to ensure legal parental rights with respect to children that parents already regard as their own.

Myers: Yes, some folks have a difficult relationship with the term “stepparent adoption” in this type of case. It doesn’t seem to describe their fact situation very well.

Tucker: This is why I like to tell couples that they are pioneers. Sometimes the law has to play catch-up in order to keep up with the reality of people’s lives.

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