In Arizona, unmarried parents enjoy the same protections that married parents have as far as child custody and other parental rights are concerned. The primary factor that family courts consider when making decisions is whether the outcome is for the child’s best interests rather than the parents.
When parents are not married to each other and no court order exists that establishes parental rights, the mother automatically becomes the sole legal authority and has the right to make decisions in behalf of the child. The biological father has no legal rights. Paternity must be established before he can acquire parental rights and obligations.
Under Arizona law, until paternity has been established, the mother can make all plans and decisions for the child without having to consult the biological father. The unmarried mother can also keep the child away from the father, deny him visitation rights, or arrange for the child’s adoption.
A man may challenge sole maternal custody by establishing paternity or through paternity determinations by the court. If the father seeks custody rights, the mother is likewise advised to do so. Unless there is a court order, both parents are assumed by Arizona law to share equally in legal decision-making for the child.
There is one primary difference between married parents and unmarried parents where paternity is involved – unwed fathers should first prove their paternity before they can acquire parental rights and duties.
There are three ways to legally establish the presumption of paternity:
- The result of a DNA test where there is a 95% or greater probability that the man is the father
- If both parents voluntarily sign the birth certificate of the child born out of wedlock
- If both parents sign a witnessed and notarized statement recognizing the father’s paternity
If there is enough evidence that the man is not the father, the judge can overrule the third method in establishing paternity.
Conditions affecting custody and child support
Once paternity has been established, an unwed father normally has the same parental rights as a divorced father who had been married to the mother. He can go into court to request parenting time and an equal share in decision-making for the child.
Like a divorced married father, an unwed father who has established paternity may likewise be denied parenting time if the child’s mother objects. An unmarried mother can have sole physical and legal custody of the child if the father is drug or alcohol dependent, has a history of abuse or neglect, or is physically incapable of child care.
If the stability of a parent is an issue, the other parent may be granted primary custody by the court. The judge can request that Child and Family Support Services conduct an investigation and report its findings to the court.
Arizona law makes the assumption that when both parents bring up the child, they do so in the child’s best interest. The law no longer favors mother or father concerning custody, provided that any arrangement is made for the child’s welfare. What’s more, many states are moving towards joint custody. If a mother prefers sole custody, she must give her reasons for why joint custody would not be in the child’s best interest.
Factors that qualify sole or full custody
If qualified, a parent can be granted sole physical custody of the child, which means that the child can live only with them. This can be elevated to sole physical and legal custody, meaning that the child lives with only one parent, and that parent has all the decision-making rights regarding the child.
An unwed mother can be awarded sole physical and legal custody of the child due to several conditions:
- If the man is physically incapable of caring for the child
- If the man has a severe alcohol or drug problem
- If the man has a history of domestic abuse
- If the man hasn’t been involved with the child for a long time
- If the man has neglected or refused to make child support payments
The age of the child is also another factor in sole custody. Generally, growing up in one home is in the best interest of young children. Since the mother is typically the main caregiver for very young children, the court frequently grants sole physical custody to the mother.
In the case of older children, the court also considers whether the child chooses to live with one of the parents. However, both parents can have joint legal custody and share in decision-making for the child.
For concerns and questions regarding family law, contact the experienced Phoenix family law attorneys at Goldman Law, LLC. We can help find the best approach to resolving your issues on parental rights and obligations.