Father’s Rights in Arizona

Introduction

The bottom line is in Arizona, fathers and mothers have equal rights when it comes to legal decision making and parenting time.

Common misconceptions about father’s rights

• • Courts favor mothers in custody disputes.

As we discuss in more detail below, this is indeed a misconception. While this may have been true in the past, the current Arizona laws require courts to treat parents gender-neutrally. In other words, from a legal standpoint both parents have equal rights. Now there are situations where a mother can gain an advantage simply by having better access to the child early on. For example, immediately following birth, the child almost inevitably spends a substantial amount of time with mother. This present opportunity for a mother to withhold the child from father. The mother can create a situation wherein the father has to play catch-up so to speak, so that he can work up to an equal custody arrangement.

• • Unmarried fathers have no rights

Like many misconceptions, this one has an element of truth. An unmarried father who takes no action has no formal parenting time or custody rights his child. However, there is a mechanism for a father to quickly obtain those rights. A father can even take steps to secure his rights before the child is born.

Legal Equality in Arizona Family Courts

Gender-neutral approach to custody decisions

Sometimes it can feel like a court is favoring one gender over another in a custody or parenting time order when the court issues a lopsided order. However, A.R.S. 25-403.02(B) prohibits gender-based preferences in custody decisions. Often orders are not equal though. The court is required to consider a variety of factors when considering custody and parenting time. (Custody and legal decision making are used interchangeably here and relate to decision making for the child. Parenting time is a separate issue and relates to the time a child spends with each parent.) Even though it can feel like a court is preferring one gender over another, the court will always articulate gender-neutral reasons for its decision.

Arizona Revised Statutes on parental rights

A.R.S. 25-103(B) states that it is the public policy of the State of Arizona that “absent to evidence to the contrary, it is in the child’s best interest: 1. To have substantial, frequent, meaningful and continuing parenting time with both parents. 2. To have both parents participate in decision-making about the child.

In other words, Arizona wants both parents involved in a child’s life. This can sometimes be hard for a parent to accept, particularly when one parent strongly dislikes the other parent. Bottom line though is if you have a kid with someone, they are going to be involved in your life for at least 18 years in Arizona.

Establishing Paternity

Importance of legal paternity

It is critical for a father who wants to guarantee time with his child to establish paternity as soon as possible. A father can initiate a paternity petition even before the child is born. See A.R.S. 25-804 that states a petition to establish paternity can be filed during the pregnancy. By establishing paternity during the pregnancy, the father can ensure he has time with his child from the very beginning.

Methods of establishing paternity in Arizona

• • Presumption of Paternity

A.R.S. 25-814 sets forth several conditions under which a man is presumed to be the father of a child. These presumptions include:

• • • The man and pregnant woman were married prior to birth
    • Genetic testing confirms paternity
    • A birth certificate signed by both mother and father
    • Mother and father sign a notarized statement acknowledging paternity.

• • Voluntary acknowledgment

The mother and father can sign a notarized acknowledgement of paternity and file it with the clerk of the superior court. The court then will issue an order of paternity. See A.R.S. 25-812 for the specific legal requirements.

• • Court-ordered paternity testing

This is only going to come up if someone filed a petition to establish paternity. In that case, either party can motion the court for genetic testing, or the court can order genetic testing on its own. Court-ordered genetic testing is only going to come into play of someone is denying paternity.

Child Custody and Parenting Time

The word “custody” can be confusing, and that’s the reason why Arizona has moved away from that term. In the past, custody could refer to who decides what a child does, or it could refer to who has physical care of a child. The terms used now in Arizona are “legal decision-making” and “parenting time.”

The court is going to look at a number of factors set forth in A.R.S. 25-403 when deciding what is appropriate for legal decision-making and parenting time. These factors are known as the “best interests factors” because the idea is these factors look at what is in the best interests of a child with respect to decision making and parenting time.

• • Legal decision-making authority

Legal decision-making, as you can guess, refers to who makes decisions for a child. Decisions might include where the child goes to school or what medical treatment the child receives. A court can award sole legal decision-making wherein one parent is vested with decision making authority. Alternatively, a court can order joint legal decision-making wherein the parents must consult one another and make decisions together.

• • Parenting time

Parenting time simply refers to when a child spends time with each parent. Parenting time can be equal, where a child spends the same amount of time with each parent. Alternatively, parenting time can be unequal, where one parent has more time with the child than the other parent.

Father’s Rights in Custody Decisions

Equal consideration for fathers

A.R.S. 25-403.02(B) says that absent some reason to do otherwise, the courts should award joint legal decision-making and substantially equal parenting time. In other words, that’s the starting point. The court may deviate from that starting point based on the court’s evaluation of the “best interests factors”.

Overcoming stereotypes and biases

If you’re looking at a paternity case wherein the child has yet to be born or is still very young, there can be some biological issues at work that can skew parenting time. Moreover, if there is no parenting time order initially, it can be easy for a mother to make it difficult or impossible for a father to see the child. That in turn can result in an initial parenting time order that is not equal. This can be quickly fixed though once the court issues an order giving the father access to his child.

A father can quickly get to an equal parenting time schedule. If the mother’s conduct is egregious, the father may even be the primary residential parenting. This means that the child will spend the majority of time with the father.

Ultimately, it is a party’s conduct that ultimately determines legal decision-making and parenting time. The more reasonable party will always prevail.

Child Support Obligations and Rights

Father’s responsibility for child support

Arizona has a child support calculator that a judge is going to use to determine a child support amount. The judge is looking at each parent’s income, how many children are involved, and how much parenting time each parent gets. Those are the most important factors, although there are some other minor things that come into play like the cost of extraordinary educational needs.

Anytime a paternity action is initiated, a child support order is going to be part of the outcome.

Right to seek child support as a custodial father

It is not always the mother who receives child support. If the parents have similar incomes, but the father has the majority of parenting time, here again the mother will probably be paying child support to the father.

If the parents have equal parenting time and the mother has a higher income, the mother will probably be paying child support to the father.

Challenges Faced by Fathers in Family Court

Common obstacles

We see two common problems come up in cases where fathers are trying to establish paternity.

• • Mothers can get a head start.

The fact that mothers give birth to the child means they don’t have to take any steps to establish their parental rights. Mothers begin parenthood in a position of power relative to an unmarried father.

Further, because the mother births the child she will, at least initially, have greater physical access to the child. This can result in a situation where the mother later claims that the father didn’t spend any time with the child

• • Fathers sometimes delay taking action.

We see a lot of fathers who weren’t sure how to approach their situation, or they hope they can just work something out with the mother. This can lead to a father delaying taking action.  Then the mother endes up having the bulk of the parenting time early on because the father has no legal rights established. No legal rights means the father has no legal right to parenting time. Then, by the time the father takes action to establish paternity and get an order for parenting time, it is difficult to get equal parenting time at first because he has not spent as much time with the child as mother.

Strategies for overcoming challenges

• • Act quickly and have a plan.

If you are going to be a father, take action before the child is born to establish your rights. Get a parenting time order as quickly as you can.

• • Exercise as much parenting time as you can.

Even if you don’t have a parenting time order, keep asking the mother for parenting time. Document your requests. Don’t get discouraged. In family court, consistency pays off. If the mother is making it difficult for you to exercise parenting time, by the time you get to court you will have months of communications asking for parenting time that you can present to the court.

Unmarried Fathers’ Rights

Differences in rights for married and unmarried fathers

A married man is presumed to be the father of any child his wife births. There is nothing he needs to do to establish his paternity or father’s rights. An unmarried father is in a completely different situation. Until the unmarried father takes some sort of action to establish paternity, he will not be legally recognized as the father. Moreover, until there is some court-ordered parenting plan, the unmarried father has no legal right to parenting time.

Steps to secure parental rights for unmarried fathers

As discussed above, there are some things an unmarried father can do to create a presumption of paternity, like getting his name on the birth certificate. Beyond that, an unmarried father needs to file a petition in court to establish paternity, legal decision-making, parenting time and child support. Only then can the unmarried father secure his rights.

Fathers’ Rights in Relocation Cases

Notice requirements for relocating parents

If there is a parenting time agreement or a court order for parenting time, a parent who is seeking to relocate with a child must notify the other parent at least 45 days before the move.

If a parent is looking to move but not with the child, then the notice requirement would not apply. However, a modification of the parenting plan might be in order.

Father’s right to object to relocation

If a father receives a notice that from the mother that she wants to relocate with the child, the father has 30 days to object. If the father objects, he needs to file a petition opposing the relocation with the court.

Benefits of hiring an experienced family law attorney

Making a plan

It is critical to have a plan in family court. A good attorney will help you put together a plan based on the circumstances of your case. Keep in mind that results in family court are not always immediate. It can take some time for a judge to figure out who the reasonable parent is and who is the bad actor.

That is why a plan is so important. Family court is a long-term situation. If you have a plan, you can almost always get where you want to go. Consistency is key.

Having someone in your corner

Communicating with a contentious ex can be challenging. Having an attorney as a buffer can be really helpful.  Being involved in a family court case can be very stressful. Having the support of someone who is familiar with that situation can help ease the stress. It can also be valuable to have someone who is not as close to the situation as you are. We always strongly advocate for our clients, so I wouldn’t say we’re entirely objective, but a good attorney can bring a more objective viewpoint to the situation.

Conclusion

In Arizona, fathers have rights equal to mothers. But unlike mothers, fathers have to take action to secure those rights. We encourage fathers to not delay, and take action as soon as possible to establish their rights.