In the state of Arizona, there are two types of custody: physical custody and legal custody. Legal custody refers to the legal right and responsibility of a parent to make important decisions regarding their child’s upbringing. This includes decisions regarding their education, health, religion, and overall welfare.
Legal custody may either be sole legal custody or joint legal custody. Sole legal custody refers to an arrangement where one parent has complete authority to make all of the major decisions regarding the child. Joint legal custody refers to an arrangement where both parents have equal or shared rights to make decisions regarding the child.
Physical custody refers to the right of a parent to have physical possession of their child. In other words, physical custody determines who the child resides with and for how long they reside with that parent or custodian.
In general, when a child primarily resides with one parent more than the other, then the parent with greater physical custody will be known as the primary custodial parent. Being named primary is often important for the purposes of determining primary residence and taxes.
It is important to note that child custody laws in Arizona differ between married and unmarried parents. In Arizona, if a child’s parents are unmarried, the mother automatically has both physical and legal custody rights over the child. This is true regardless of if the father’s name is on the birth certificate.
As such, unmarried fathers have extremely limited rights in cases where the parties are unmarried at the time of the child’s birth. If the father wishes to gain parental rights and responsibility, such as custody of their child, he must petition the court for such rights.
It is important to note that paternity is not automatically established in Arizona when the parents are unmarried. However, once paternity is established by the father, the father may then seek to pursue custody of their child in cases of separation from the child’s mother.
The simplest way for a father of a child to establish paternity is by signing a Voluntary Acknowledgement of Paternity form, which is available at hospitals, birthing centers, and the Department of Economic Security (“DES”) offices. This form can be completed immediately after the child’s birth or at a later time. If both parents do not acknowledge paternity, the father may petition the court to establish paternity.
Can an Unmarried Father Take a Child from the Mother?
As far as if an unmarried father can take a child from the mother, that will depend on the facts and circumstances of each case. Historically, family laws were stacked against fathers who sought physical and legal custody of their children, especially in cases where they were seeking sole custody.
However, both state family laws and courts have now become more unbiased as to their perspective on granting a father legal or physical custody of their child. It is important to note that child custody decisions will always be based on the child’s best interest standard. The child’s best interest standard is a legal standard that prioritizes a child’s welfare over the wants and desires of the child’s parents.
This means that in Arizona, what is considered to be best for the child will always be placed over the wants and needs of the parents involved. In fact, family law courts in Arizona will only make custody decisions based on what is best for the child. Specifically, the best interest of the child standard is outlined in Arizona Revised Statutes Section 25-403.
Examples of common factors used in evaluating a child’s best interest when it comes to determining custody in Arizona include:
- The relationship between the child and each parent
- The child’s adjustment to home, school, and their community
- The wishes of the child, if they are of suitable age and maturity
- In Arizona, there is no specific age at which a child can choose which parent to live with. Instead, the court considers the child’s preference on a case-by-case basis, taking into account the child’s age, maturity, and ability to form an intelligent preference
- The mental and physical health of all individuals involved
- Whether there is any history of domestic violence or child abuse
If there is evidence of domestic violence or domestic violence in the household by the mother of the child, then the unmarried father may take the child from the mother.
What Will Likely Happen if There Is a Custody Battle Between Unmarried Parents?
As far as what will likely happen if there is a custody battle between unmarried parents, the child custody laws for unmarried parents in Arizona will play a key role in determining custody. For example, if paternity has not been established for the father, then the custody of the child will automatically go to the mother by default.
However, if paternity has been established, then the child’s best interest standard will be utilized by the court to determine what custody arrangement is in the child’s best interest. Once again, paternity may also be contested in some cases, such as the presumed father of the child filing a denial of paternity or the mother not signing the acknowledgement forms.
In general, it is presumed to be in the best interests of a child to spend equal time with both of their parents. In other words, joint physical and legal custody is often presumed to be in the child’s best interests and a favored arrangement by judges and juries.
A local attorney in Arizona is often necessary in order to ensure that your legal rights as a parent are protected during a custody fight. An attorney can help a parent avoid a lengthy and expensive custody battle and help find a custody arrangement that works for both parties.
What Are Some Other Issues That Unmarried Parents May Experience?
There are many issues that unmarried parents may experience when it comes to custody of their children. Overall, the biggest issue that will cause issues for unmarried parents would be unestablished paternity.
Once again, without signing an acknowledgement of paternity, determining child custody will be a complicated and often drawn-out issue. This is because the father will often have to take court action or be ordered to take action in order to determine paternity through court-ordered DNA testing. After that entire process is completed, then a custody battle will often ensue between the two parents.
Establishing paternity is also important for a variety of other matters concerning a child, such as tax implications, decision-making for the child, and setting up child support. In Arizona, the primary custodial parent has the right to receive financial support in the form of child support from the non-custodial parent. This is true regardless of whether or not the parents are married.
Another common issue is if one of the unmarried parents lives outside of Arizona. Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the child’s home state is the court that has jurisdiction in child custody matters.
As such, if a child is born in Arizona, then that is considered to be their home state. However, if the child has lived in a different state for six or more months, then Arizona may no longer have jurisdiction over the custody case.
Do I Need an Attorney for Help with Child Custody Issues Between Unmarried Parents?
If you are an unmarried parent in Arizona and are experiencing issues related to child custody, it is advised that you consult with an experienced Arizona child custody lawyer. LegalMatch can assist you with setting up a legal consultation with an experienced attorney in your area.
An attorney will then be able to advise you as to what your best course of legal action is when it comes to protecting your parental rights and establishing custody. Further, an experienced and local child custody attorney will be best suited to helping you adhere to Arizona’s specific laws and guidelines regarding child custody.
An attorney will also ensure your child’s best interests are being protected while also ensuring that your parental rights are protected. A child custody attorney will also be able to represent you in court as needed.
