Should I Get a Divorce?

Everyone experiences difficulties at various points in life. These concerns can be numerous and minor, few and severe, or any combination between. Families endure financial hardship, healthcare problems, emotional and psychological differences, domestic disputes, births, deaths, and sometimes legal trouble.  For married couples, these and other issues may lead spouses to consider divorce.

The question of whether to seek a divorce in Maricopa County can trouble a person for years because the process and consequences of legally dissolving a marriage are complex and frequently change.  Some people may not know anyone who has divorced, or they may know people whose hardships only increased after beginning the process.  Others may have outdated ideas about dissolution based on rules that no longer apply. Still more may understand the process but are not able to weigh the consequences on their own.  Here are some tips and observations to enlighten your decision.

What is a dissolution?

Which Way To Go?In Arizona, ‘dissolution’ describes the process of legally ending a marriage (the same process that most people call ‘divorce’). Dissolution differs from annulment primarily in the court’s treatment of marital property because dissolution dissolves a marriage while an annulment treats the marriage as if it never existed because of some technical flaw in its formation.  Parties whom the court acknowledges were married are typically entitled to a more comprehensive analysis and distribution of community assets than parties whose marriage should never have been granted (because, for example, one of the parties was under 18 and lacked legal capacity to marry without parental permission).

How do I get started?

Dissolution begins when one of the spouses files a Petition for Dissolution with the appropriate court (in Arizona, this is usually the Superior Court for the county in which one of the parties resides).  For example, a married couple living in Scottsdale would likely file their dissolution action at the Superior Court of Maricopa County unless they have not lived in the state long enough to establish jurisdiction.  The petition tells the court the information that it needs to confirm that the parties filed in the correct jurisdiction and lays out the issues that the petitioner needs to have resolved, such as division of marital property, orders for spousal maintenance, child support, parenting time, and legal decision-making authority (formerly called custody).  Once the judge receives the petition and supporting paperwork, he will issue a preliminary injunction that orders the parties to maintain the ‘status quo’ by not unnecessarily depleting bank accounts or disposing other assets until the dissolution is complete.

Do I need to have a reason for divorce? 

Arizona, like most states, does not require fault by one of the spouses before dissolving a marriage.  Under the old system (abandoned decades ago), courts would only grant divorces if some form of marital impropriety occurred, such as adultery, abandonment, or domestic violence.  Only uncommon covenant marriages maintain limited permissible bases for divorce that are established by contract before the parties marry.  For non-covenant marriages (the vast majority), the petitioner need only declare in the petition that the marriage is irretrievably broken to begin the dissolution proceedings.  Courts may still consider marital misconduct when dividing property or scheduling parenting time, but the days in which couples attempted to fabricate a basis for divorce are over.

My spouse has all the money.  How can I afford a divorce?

With virtually infinite permutations of marital roles, it is extremely common that one spouse earns significantly more money than the other.  Sometimes, one spouse controls most of the family’s financial affairs and the other is unsure of the existence or whereabouts of community assets.  Unequal access to marital resources may work fine during the marriage, but it can also provide a basis for exploitation and stop an aggrieved spouse from seeking a divorce.

The fear of being ‘frozen out’ during dissolution proceedings should not prevent you from divorcing if you believe the marriage should end.  Even before a final judgment dividing the community property, the judge can issue temporary orders requiring the higher-earning spouse to pay spousal maintenance and other expenses during the case.  Spousal maintenance payments may continue after the divorce if one of the parties lacks substantial earning capacity or needs long-term support.  Sometimes, the judge will also order one spouse to pay the other spouse’s legal fees, especially if the higher earner acts unreasonably during negotiations.  Arizona law is structured to give parties with less bargaining power access to the same protections available to the high-income spouse.

Kid in Sprinkler

What if I lose my kids in the divorce?

There is no denying the fact that dissolving a marriage takes a toll on everyone in the family.  One of the biggest fears that traps people in toxic marriages is that the other parent will take the kids and the family will be destroyed.

First, Arizona law strongly favors granting as much parenting time to each parent as possible.  Unless there is some reason to believe otherwise, such as domestic violence or criminal history, the court presumes that each parent is fit to raise the children and that the children’s interests are best served by having a meaningful and continuing relationship with each parent.

Although many parties threaten that they will ‘battle for custody’ to prevent their spouse from proceeding with a divorce, the determination of where the children will live and spend their time depends on the children’s best interests, not the persistence or finances of one of the parents.  Unless your background or actions during the proceedings cast doubt on your ability to raise your children, your spouse cannot exclude you from their lives.  If your marriage is toxic beyond repair, it may be best for your children for you to divorce instead of keeping them in a marital home filled with conflict.  If you or your children need counseling to get through the process, that expense can also be included in the temporary orders.

Is being divorced worth getting divorced?

Whether you want to remain married is an immensely difficult question to answer.  If you are truly unhappy in your marriage, however, you should not allow fear of the legal process to trap you in a toxic or dangerous situation.  An experienced attorney with strong networking skills can get you the help you need to make an informed decision and, if you decide to seek dissolution, to make the proceedings move as smoothly as possible.  When the quality and fulfillment of your life is at stake, a positive outcome is worth investigating.

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Special Divorce Considerations for Physicians

After representing numerous doctors (and the spouses of doctors) in Arizona, we realize that physician divorces are different.  It is not that the law treats doctors uniquely — there are a host of considerations that are not present in many other divorce scenarios.  Sure, there are the usual issues, but there are complicating factors unique to physicians, such as valuation of medical practices, high asset divisions, as well as spousal maintenance claims.Doctor

There are no clear studies on physician divorce rates, but one recent article did not glamorize success rate of doctor’s marriages.  Although the accuracy 0f these statistics is not perfect, it is indisputable that these dissolutions necessitate a different level of attention because of the issues involved.  Physicians generally have complex financial issues that begin with oppressive student loans, but are also typified by numerous investments including homes, vacation homes, timeshares, retirement accounts, financial accounts, non-traditional investments, and the medical practice itself.

While not meant to be comprehensive, we put together a list of special considerations that are generally critical to physician divorces.  We use this list when initially consulting with physicians (or their spouses) to gather information necessary to form a deliberate legal strategy:

1.  Spousal maintenance:  In Arizona our statute details factors for the Court to consider in awarding maintenance (elsewhere known as alimony).  These factors include, but are not limited to, length of marriage, standard of living during the marriage, and the disparity of income.  While we have seen a number of physician/physician divorces, we also frequently see cases in which the physician’s income is significantly higher than that earned by the spouse.  Sometimes, the non-physician spouse can also argue that they supported the physician through medical school and residency and gave up their own opportunities in the process.

Doctor with xray2.  Practice valuation: Some medical practices have an actual value, much like if the family owned a restaurant.  In Arizona, the spouse would have a claim to their community share of the practice value.  However, this does not apply to all physicians.  For example, an Emergency Room doctor who is employed by an ER practice may simply be paid a rate for his work, much like the hospitalist trend that has taken root here in Arizona.  In those situations there would not be a value to the practice.  However, if that ER doctor were a partner and had an ownership interest in his practice, the analysis would be significantly different.  Similarly, some medical offices have assets to value, such as a radiology practice that owns MRI machines.  Some of these machines have used market values in excess of $1,000,000.  If the physician spouse purchased the machine and paid it off during the marriage, the non-physician spouse could be entitled one-half the value of the equipment.

3. Debts:  It is not uncommon for physicians to have large student debts that still need to be paid off.  Furthermore, while some physicians may be very conscientious of the state of their marital financial affairs, others may be simply too busy and stressed with work to know the intimate details.  For example, they may have no clue that their spouse has racked up significant credit card debt, which is presumably community debt to divide in a divorce.  Knowing what debts you have and your options for ensuring that they get paid, including offsets from other property or even reduced maintenance, is key to a comprehensive settlement.

4. Parenting Time:  Some physicians have routine and well-established schedules.  Others do not and may work a rotating schedule with abnormal hours.  Still other divorcees may be in medical school and looking at internships, residencies, and other jobs that may require relocation.  These all play an important role in determining parenting time for the children.  For physicians, or soon-to-be physicians facing divorce, it is important to maximize the quality parenting time with your children.  Your parenting plan may need built-in flexibility or other creative ways to deal with potential scheduling issues that may arise. Dad and son

5. Child Support:  In Arizona, child support is calculated pursuant to the Arizona Child Support Guidelines.  The guidelines provide the amount of support based upon the respective incomes of the parties.  The guidelines, however, do not compute additional support for combined parental incomes of over $20,000 per month (i.e. your child support is essentially capped once it is calculated at any combined monthly income of the parents at $20,000).  But for physicians it is not uncommon for incomes to be in excess of this per month, and by extension it is not uncommon for children to be accustomed to life styles that require higher than normally calculated child support.  Child support orders may deviate from guideline amounts upon showing of good cause, but the necessity of a deviation can be difficult to discern.

6.  Time and Disclosures:  Often, physicians are not used to having to fully disclose all information regarding their finances to attorneys.  They are also very busy with their practices and may even have schedules that are incompatible with normal working hours.  This makes obtaining information that is required to be disclosed more complicated than usual.  On top of this, perhaps the only exposure physicians have to attorneys before entering into a divorce proceeding is in malpractice suits.  Consequently, it is not uncommon for physicians to be too busy/skeptical/jaded when asked to provide years’ worth of financial records.  Despite this, the best policy is to be forthcoming with all required disclosures.

Physician dissolution cases require finesse and, above all else, trust between the parties and their attorneys. Ideally, a skilled attorney can navigate the treacherous waters of divorce without capsizing the family, the medical practice, or the parties involved, but the best results can only occur when each participant acts in good faith.

Implications of Protective Orders

Orders of Protection are not to be taken lightly. There are many ways an Order of Protection can affect your life.

In Arizona, Orders of Protection are governed by the Arizona Rules of Protective Order Procedures. An Order of Protection is sought when someone feels they are in danger of being physically harmed or have been physically harmed by another person. The other person must have had some type of relationship with the person they are seeking the order against. There are many relationships the parties could share or have shared in the past giving rise to a need for an Order. These relationships could include former lovers, relationship through marriage or blood, residing together, or having a child in common.

ConfrontationIn order to get an Order of Protection, the Plaintiff (requesting party) needs to go to Court and file a Petition for the Order of Protection.  The Petition could be filed with a municipal or justice court in places like Mesa, Glendale, or Scottsdale, or in the Superior Court in Phoenix.  The Court will consider the Petition for Order of Protection and can grant the Order based solely upon what the Plaintiff says.

Once the Order is granted, it is served on the defendant (other party).  At that point, the Defendant has the right to contest the Order of Protection.  If a hearing is requested, both parties need to appear in the Court and the judge will decide whether the Order should be kept in place, modified, or dismissed. This is a crucial point in the case. If an Order is not defended or contested properly, it could have lasting implications on you.

What could that mean for you if the Order is issued against you, or upheld against you after a hearing?

Orders of Protection are likely to show up on background checks run by potential employers, preventing you from obtaining certain jobs. An Order of Protection could also get you terminated from your current position or reassigned to other duties within a company or government office. Orders of Protection prevent you from possessing a firearm and, if you already own one, force you to relinquish it. The Court could also order the exclusive use of a common residence to the Plaintiff.

Gated Patio

The Order may also limit your ability to see or communicate with children, and that could also have an effect on any other pending family court cases.  Orders of Protection cannot list a child unless the judicial officer believes that “physical harm has resulted or may result to the child, or the alleged acts of domestic violence involved the child,” but the weight that the judge gives to allegations in protective order hearings is often greater than what would be given in other types of cases.

Under emergency circumstances, a judge may err on the side of caution and enter a child on a temporary basis even with a minimal allegation of danger. This is a small consolation because in the end an Order of Protection could affect permanent parenting time and legal decision-making.

Although many parties proceed without representation in Order of Protection hearings, the severe consequences of having an Order entered against you may justify retaining an attorney.  Even though the Order is temporary, its impact can last a lifetime.

What Happens to Children When Parents Split?

There is a growing trend in divorce cases to award equal parenting time to both parents. Several states, including Arizona, have joined this trend and modified their relevant statutes.  Parents in Phoenix, Arizona have seen this trend through the amendments enacted in the beginning of 2013. Specifically, the language in the statutes changed from “custody” to “legal decision-making,” signifying a change in the collective attitude toward parental rights and responsibilities.

Dad with kids

From a historical standpoint, the trend in parenting time arrangements has dramatically changed over the years. In the beginning, women were free to leave men, but the children stayed with their father – as the children were considered more akin to property. The trend slowly moved toward a court system that favored mothers as the prevailing belief emerged that mothers provided a more nurturing environment, especially for younger children (also called the tender years doctrine).

All that may be history now. Though there are exceptions (which may include domestic violence, substance abuse, mental health issues, and other safety concerns), courts have recognized the need for both parents to have a loving and healthy relationship with their children.

This also means that Arizona now sets out to “maximize” each parent’s parenting time with the child(ren). To further illustrate the importance of this trend and policy, Arizona legislature has addressed the issue in its statutes. Specifically, the best interest statute, ARS § 25-403(A)(6), states that the court must consider “which parent is more likely to allow the child frequent, meaningful, and continuing contact with the other parent.”

Mother with childIf the court finds that a parent is constantly trying to play “keep away” with the children or frequently puts the other parent down in front of the children, it will likely have a negative impact to that parent’s time with the children. Courts are reluctant to tear children away from either parent and courts want each parent to foster a healthy relationship with their children.

An important point to consider during a divorce or custody proceeding is that it’s more likely than ever that you will be sharing parenting time. Maintaining a functioning, good-faith relationship with the other parent is critical to ensure that you do not lose time with your children.

Munchausen by Proxy?

It’s a tragic story. Garnett Spears, a 5-year-old boy, was given deadly amounts of sodium through his feeding bag, allegedly by his mother.

After beginning treatment, hospital tests revealed unusually high amounts of sodium in the boy’s body, which accounted for his neurological symptoms. With this bizarre finding, the doctors at the hospital immediately notified CPS, who began an investigation into the matter.

Children at hospital

In Arizona, according to A.R.S. § 13-3620, it is mandatory for treating physicians to report any reasonable belief that a minor is a victim of physical injury or child abuse. For instance, if a Mesa mother brought her son to Cardon Children’s Medical Center with burn marks that appeared to be caused by a cigarette, they would likely contact CPS to investigate the incident.

New York has a similar law, NY SOC SERV § 413, which states that physicians are required to report if a child has been maltreated or abused and has come to them in their official capacity. The doctors in this matter saw a red flag in the unusual test results and knew they must report the incident immediately.

While the boy was in the hospital, his mother called a neighbor to dispose of his feeding bag. The neighbor, suspicious of the odd request, decided to retrieve the bag but instead of disposing of it, turned it over to investigators looking into Garnett’s death.

Mother and ChildWhen the authorities received the feeding bag from the neighbor it was tested to determine if he was being fed the high amounts of sodium through the feeding bag inserted into his abdomen. Tests revealed the bag indeed contained high levels of sodium that accounted for the dangerous levels of the chemical that killed him. Unfortunately, it was too already late for Garnett.

Through investigation, authorities found that the mother had been documenting the son’s multiple illnesses through social media. They believe Spears may suffer from Munchausen by proxy and caused her son’s illness, and ultimately death, for attention. It is likely she did not intend to cause the untimely death of her son but that was the regrettable result.

Family and friends gathered in support of Spears through her posts regarding her son’s illness and his stay at the hospital was no different. Spears denies giving her son the excess amount of sodium, but authorities are still investigating the matter and will likely charge her with the crime.

Can Refusing Your Kid McDonald’s Make You Unfit to Parent?

Attorney David Schorr was accused of being an unfit parent by a psychologist in New York because he refused his 4-year-old child McDonald’s. The New York father currently has visitation time with his son every Tuesday. Mr. Schorr asked his son what he wanted for dinner and the son replied with the typical child response… McDonald’s!

Mr. Schorr was not enthused about the thought of having fast food for dinner and offered several other options. The son refused all other options and proceeded to throw a fit to get his way. The exasperated father finally “put his foot down” and said if his son did not choose something other than McDonald’s, they would have nothing. To his dismay, the son chose nothing. Mr. Schorr returned his son to his mother without getting him their Tuesday night dinner.

French Fries

This all happened in the midst of a bitter custody battle. Sometimes in Arizona, when custody battles become a convoluted mess of “he said-she said,” courts appoint a forensic psychologist to speak with the family and make recommendations about the best interest of the children involved.  If a Scottsdale father is alleged to be unfit for refusing to take his spoiled kid to Sapporo, there are numerous psychologists and family interventionists in Maricopa County who may be asked to step in. That was likely the case in this custody battle. Though the courts are not required to follow the recommendations of the psychologist, they often put a lot of weight on the recommendations. Mr. Schorr was outraged by the accusations and recommendations in the psychologists report and brought a defamation suit against the psychologist.

To read more about the “unfit” McDonald’s denier, click here.

Proposal Will Change Arizona Child Custody Law

A new piece of legislation in Arizona may require divorced parents to file notices with the court and serve their ex-spouse with the notices before moving.

Boxes (Woodnick)The bill, described by Bob Christie writing for the Associated Press (reprinted on azfamily.com – link here), would require divorced parents to give notice 60 days in advance of the proposed move. If their ex-spouse objects, then the parent who wishes to move would need to seek judicial approval. While this requirement is no different than the current relocation statute, the circumstances which would prompt the written notification are.

Under current Arizona law, parents are required to notify their ex-spouse if they intend to move out of state or more than 100 miles away. The purpose of this requirement is to address the impact that a long-distance move can have on the parenting time of the non-custodial parent.

The new bill removes the 100-mile “bright line” rule, and instead requires notice to be given if the proposed move substantially affects a number of parenting time related issues, such as parenting time, school attended by the children, or the traveling time for the exchanges. Proponents of the new bill say that abolishing the 100-mile rule will stop abuse by custodial parents who frequently move short distances to interfere with the non-custodial parent’s parenting time, or resolve the problem that arises when a parent moves less than 100 miles, but parenting time is still negatively affected.

Conversely, opponents fear that custodial parents’ right to travel and freedom to accept new employment opportunities. Christie’s article also points out one of many potential conflicts in the event of an involuntary move – a landlord may require a custodial parent to move after issuing a 30-day notice, leaving them without enough time to file proper notice with the court and the non-custodial parent.

Moving House (Woodnick)In Arizona divorce and child decision-making and parenting time law, the ultimate goal is to effectuate the best interests of the children in every case. For parties with a parenting plan including parenting time for both parents, the new law, if passed, will prevent abuses which are presumably allowed under current statute. It could also open the door for abuse, however, because it become so easy to object a move even if the distance is relatively inconsequential.

The interests of children are almost always best served by the agreement of the parties. Divorced parents who can come together to work out parenting plans and later amend them to incorporate the needs of everyone involved – whether those needs include moving, changing the schedule, or some other arrangement – do their children a great service. After all, having their parents repeatedly feuding in court for unmeritorious reasons is not in any child’s best interest.

ASU’s New Beginnings Program Offers Help to Divorced Parents

Separation or divorce is a trying experience for any family, but the greatest impact is often felt in families with children.  Young children are especially vulnerable during times of change – a divorce can leave a child feeling frightened, neglected, and even worthy of blame for their parents’ dispute.  Children who witness a divorce may vent their emotions in unexpected – even dangerous – ways if they are unable to cope with the situation.  In some (thankfully uncommon) cases, the trauma of divorcing parents can cause lifelong problems for children, making them more likely to engage in high-risk behaviors and less able to handle emotional challenges.

Monkey Bars (woodnick)For parents, knowing how to talk to their children about their divorce – or whether to talk to their children about it at all – is no small concern.  There is no simple instruction book for parenting your children through tough times, and it may feel as though there is no way to help them.  If your child starts acting out or doing poorly in school, you may not realize that there are ways for you to help them.

Over the past few years, an Arizona State University applied research project has attempted to change the way parents think about divorce.  The program, dubbed “New Beginnings,” is an educational course for parents who are separating or divorcing.  The program focuses on giving parents the information and tools they need to talk to their children through the process of the divorce.

So far, the results have been tremendous, garnering national attention for the substantial long-term improvements to children’s overall well-being as a result of more effective parenting.  Research (and common sense) demonstrates that more parental involvement helps children adjust after a separation or divorce, and parents who employ more effective parenting strategies see even better results.  New Beginnings is designed to educate parents about these strategies and to prepare them for their children’s reactions to the separation as it moves forward.

New Beginnings is offered to mothers and fathers in Coconino, Maricopa, Pima, and Yuma Counties.  The program’s administrators encourage attorneys and other professionals to inform separating or divorcing parents about New Beginnings.  As interest grows, it seems likely that the program will expand, as well, meaning that parents in cities around Arizona, from the Phoenix-Mesa-Glendale Metropolitan Area to Tucson, Flagstaff, Show Low, Lake Havasu City, and beyond.

Walk (woodnick)The New Beginnings program is offered free of charge to qualified applicants, as it is funded in part by grants from the National Institutes of Health.  Parents are paid for participating in three phone interviews during the process, which allows researchers to gather information about the effectiveness of the strategies they teach so they can continue to improve the curriculum.  Free child care is even offered at the small-group workshops, making the program accessible to parents who may not be able to afford similar assistance elsewhere.

If you are thinking about separation or divorce, there is a plethora of issues to consider.  In the circuses of asset division, spousal maintenance, child support, parenting time, and custody, it is easy to get lost in the numbers and legal disputes and forget about the human impact that a dissolution action can have on your family.  Hire an attorney who can ease the burden of handling the legal issues, then take some time to guide your children through the process.  Your involvement is the best medicine for anything which might negatively impact your kids.

Jurisdiction in Custody Hearings

When custody of a child comes under issue, whether in the context of a divorce, allegations of abuse, or some other dispute, determining which court should hear the matter is not always simple. This is complicated when the child’s parents live in different cities or states.

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Obviously, some of the more difficult cases arise when parents live in different countries – if one parent is deployed to a military base in Europe, for example.  The Hague Convention deals with international abductions and custody matters, but similar difficulties can arise between states within the United States.  Thankfully the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) helps to answer some of these questions.

The UCCJEA is a uniform act which has been adopted by Arizona, and was enacted “[…] to avoid jurisdictional competition and conflict, promote cooperation between states, discourage the use of the interstate system to continue custody controversies, deter abductions, avoid relitigation in different states, and facilitate enforcement of custody decrees between states.”  Welch-Doden v. Roberts, 202 Ariz. 201, 206 (App. 2002).  In Arizona, the UCCJEA’s principles are embodied in statute.

Under Arizona statutes, there are four ways to obtain initial custody jurisdiction.  If there is a “home state” in which the child lived within six months before the commencement of the proceeding, then that state likely becomes the proper state to hear the case and jurisdiction may not be too complicated.  A.R.S. § 25-1031(A)(1).  Specifically, the “home state” of a child – defined in A.R.S. §25-1002(7) – is the state where the child lived for at least six consecutive months immediately before the commencement of the proceeding, including temporary trips outside of the state (for vacations and things of that nature).

However, as discussed in Welch-Doden, the definition of “home state” in A.R.S. §25-1002(7) conflicts with the adopted UCCJEA provisions.  In Welch-Doden, a mother filed a dissolution of marriage action in Arizona.  She had been in Arizona with the parties’ minor child for four months prior to filing the divorce action.  Prior to this time, she and the minor child lived for six months in Oklahoma (where the father lived), three months prior to that mother and the minor child lived in Arizona, and seven months prior to that mother and the minor child lived in Oklahoma – a veritable spider web of residency and a jurisdictional nightmare.

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Pursuant to the strict definition of A.R.S. §25-1002(7), the mother argued that there was no “home state” because the minor child had not lived in any State for six consecutive months immediately prior to the filing for divorce.  The court adopted the father’s argument, however, that A.R.S. § 25-1031(A)(1) expanded the definition of “home state” to mean that if there was any State that could have been considered the “home state” within the six months prior to filing the custody action, that State would have initial custody jurisdiction.

The Welch-Doden court ultimately decided that Oklahoma held initial child custody jurisdiction because it had been the child’s home state within the six months before the petition was filed (but not the home state for the six- month period immediately prior to the filing).

If Welch-Doden teaches anything, it is that UCCJEA jurisdiction can be immensely complex – and the complexities don’t end with the issues above.  If you recently moved to (or from) Arizona, there may be jurisdictional conflicts which must be resolved before any further custody determinations take place.

Sperm Donor Expected to Pay Child Support

Reuters reports that the State of Kansas has filed a petition to declare a sperm donor the legal father of his genetic child in an attempt to make him pay child support.

The donor, William Marotta, met privately with a lesbian couple seeking to have a child, rather than arranging the donation through a licensed physician as required by Kansas law.  The couple found Marotta on Craigslist and presumably arranged the donation privately to avoid unnecessary expenses.  The couple sought to receive state benefits for the child’s medical care, prompting a mandatory identification of the child’s genetic parents – namely Marotta.

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Marotta’s response to the state’s petition centers around a contract signed by the parties, absolving him of legal parental status and any future financial obligations arising as a result of the sperm donation.  Marotta’s lawyers cite a 2007 Kansas Supreme Court case in which a sperm donor was denied parental rights.  In that case, the parties had no formal agreement stating whether the donor maintained legal parent status or any potential obligations.

In essence, Marotta claims that the state should not be permitted to assign parental rights in the present case, where hard financial times have left the couple unable to fully provide for the child’s medical expenses, unless the state is willing to grant parental rights to all sperm donors who seek them out.

The case has drawn national attention due to its bearing on parental rights both of sperm and egg donors, as well as those of same-sex and infertile couples who hope to conceive a child.  An unfavorable ruling for Marotta would set a precedent which could be harmful to anyone seeking to conceive by artificial insemination.

In Arizona, A.R.S. § 25-501 provides that a child born as a result of artificial insemination is entitled to support from the child’s mother and the mother’s spouse, but only if the spouse is also the child’s biological father or signed a written agreement to take responsibility for the child before or after the insemination occurred.

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It is unclear whether the state could seek support from a sperm donor in the same way as Kansas, although several Arizona Supreme Court decisions declare a universal duty owed by parents to support their biological or adopted children.  With many leading fertility specialists practicing in Phoenix, Chandler, Scottsdale, and around the state, a case like the one in Kansas may be inevitable as more individuals turn to artificial insemination as a means to have a child.

In any surrogacy situation, sperm or egg donation, adoption, or custody matter, it is important to speak to an attorney and to lay the necessary legal groundwork in advance of taking any action.  Smart legal advocacy and planning are critical, especially when the impact involves children.