The Other Mom

A fight for equal custody is an example of why marriage equality in Arizona is needed now

Mari Herreras
Suzan McLaughlin wants the state of Arizona to recognize her rights as a mother.

Like many gays and lesbians across the country, Suzan McLaughlin is waiting for history to be made and rights protected.

The Supreme Court is expected to decide any day now on California's Proposition 8 and the federal Defense of Marriage Act, but those decisions won't help McLaughlin's current battle, which involves gay and lesbian parents fighting for their parental rights in the middle of custody disputes.

If same-sex marriage was recognized nationally or even in Arizona, where the state constitution was changed not long ago to define marriage as only between a man and a woman, McLaughlin's legal rights to her son would be left up to a family law judge approving a parenting agreement before issuing a divorce decree.

When the former nurse began planning a family with her wife, Kimberly McLaughlin, whom she married in California in 2008, she thought she was doing everything she possibly could to protect those rights. When her wife left their home with their son, she learned that all the legal documents they drew up together weren't going to help her get equal custody.

She heads to court on July 2 to ask a Pima County Superior Court judge to allow her case to move forward in hopes a judge will hear it and possibly recognize her rights as a mother despite Arizona law.

"I need a voice in the courts. ... I have a lot that will show I am not lying about being a parent to our son," McLaughlin said.

However, part of the challenge for McLaughlin is that she is not the biological parent. She tried to get pregnant, but miscarried twice before it was decided that her wife would try to conceive through sperm purchased from a California sperm bank. McLaughlin's wife was able to carry the pregnancy to term, and their son, Edward, was born on June 14, 2011. Suzan McLaughlin, who legally changed her name in 2008 so everyone in the family would share the same last name, stayed home to care for the child full-time.

Before their son was born, the couple had a joint parenting agreement drawn up. In the agreement, it states "Kimberly McLaughlin hereby appoints and declares her spouse and partner, Suzan McLaughlin, to be a co-parent of her biological child. Kimberly McLaughlin strongly encourages and supports a parent-child relationship between Suzan McLaughlin and the child. Kimberly McLaughlin believes that it is in the child's best interest to have a parent-child relationship with Suzan McLaughlin. Kimberly McLaughlin hereby acknowledges and waives any constitutional, federal or state laws that provide her with a greater right to custody and visitation than that enjoyed by Suzan McLaughlin pursuant to this agreement."

The agreement is signed by the McLaughlins, as well as Kimberly McLaughlin's parents. It's documents like these that many gay and lesbian couples in states like Arizona have always seen attorneys about in order to protect their rights as a couple and as parents. It's what makes being a gay and lesbian couple, and family, far more expensive than for straight couples and families, considering it costs only $72 to get a marriage license in Pima County.

Besides a parenting agreement, the McLaughlins also drew up a domestic-partnership agreement, which is typically done by couples to define what property is shared, and who gets what if they separate. Couples also get a durable power of attorney that allows one person to make financial decisions for the other if one of them is unable to do so, as well as the power to address specific medical issues, along with a living will.

In "Paper Marriage," June 17, 2010, the Tucson Weekly wrote about the legal paperwork gay and lesbian couples turn to for added protections, but noted that children make things more complicated. Some couples in other states have turned to adoption to strengthen parenting rights. But in Arizona, only one person in a same-sex union can be the legal parent in an adoption. And if a lesbian couple uses donor sperm, like the McLaughlins did, the person who gives birth to the child is considered the legal parent.

McLaughlin's attorney, Dina Afek, told the Weekly that part of her work going into court next month is convincing the judge that despite Arizona law, McLaughlin's case is worth a hearing.

"It is incredibly sad to me that people would use the law to basically deny somebody their rights," Afek said.

"The case is about equity and has to do with fairness. She had been a parent figure for this child."

Afek said that even though the Supreme Court cases likely will not alter what happens in court for Suzan McLaughlin, she's hopeful. "We're in the middle of a change. Things are changing, and maybe that will help this case."

As McLaughlin goes to court in Pima County to remedy custody issues, she's also dealing with an annulment filed by her wife in Maricopa County. McLaughlin said couples have had the most success with these in Maricopa County, even though same-sex marriage is not legally recognized in Arizona.

McLaughlin said the legal process has been overwhelming at times, mostly because she and her wife never talked about splitting up.

"My marriage wasn't over in my mind," she said.

When their son was born, it was decided that McLaughlin would be called Mama and her wife would use the name Baba. Their son was named after McLaughlin's deceased brother. Despite all that, McLaughlin said that when she returned from errands one day in March, a moving truck was in front of their house and her wife was taking apart their son's crib with her father-in-law's help.

"I was in shock and when I asked where Eddie was, I was told, 'Never mind that. You know I am unhappy. I am moving out,'" she recalled.

"He was so well adjusted and so happy—he loved both of us. To just cut me out of his life, I know he suffered because I was his safe place."

She has been offered supervised visitation, but McLaughlin said she's refused it because she doesn't understand why her visitation has to be supervised, and she doesn't want to start a precedent without a legal parenting plan in place. "It wouldn't be good for him if I show up once and then it isn't consistent.

"It's been difficult. I missed his birthday, Mother's Day, my birthday and Easter," she said.

"Right now, I want to make people aware of why LGBT people fight so hard to have the same rights as everyone else. I want my son. I should have some rights to my son and he should be able to be with his mother.

The Weekly called Kimberly McLaughlin's attorney, Lisa McNorton, for comment but had not heard from her by press time.

(Note: This story went to press before the June 26 Supreme Court rulings on the Federal Defense of Marriage Act and California's Proposition 8.)

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