Who has legal decision making rights (custody) of a child born to unwed parents in Arizona?

The question of whether unmarried parents have joint legal decision-making by default is undecided. The only Arizona statute on the subject is a criminal statute regarding custodial interference that provides, for the purposes of Criminal Law only, an unwed mother is the legal custodian until paternity is established and custody or access is determined by a court. A.R.S. §13-1302.

Some attorneys claim this statute stands for the proposition that unwed mothers have superior legal decision-making rights. This is true if paternity has not been established. However, once paternity is established, nothing in the Arizona Family Law statutes (Title 25) grants an unwed mother superior legal decision-making rights. If paternity has been established for an unwed father, but there have been no legal decision-making (custody) proceedings or orders, an unwed mother has the upper hand for the purposes of custodial interference, but not necessarily for legal decision-making.

For example, five year old Joe was born to unmarried parents and lives primarily with his father. Joe sees his mother about once a month because she lives in California. Joe’s father wants to put him in a charter school focusing on language immersion and his mother is opposed. In my opinion, the Criminal Custodial Interference statute does not apply to this scenario as there are no custodial interference issues. Both parents are legally entitled to enroll the child in school and make the decision of where Joe should attend school. If the parents cannot agree, they need to go to court to establish legal decision-making, along with parenting time and child support. Even if the court grants joint legal decision-making, the court will then hear from both mother and father regarding the school issue and ultimately make the decision.

Another common situation is when a child of unwed parents receives a diagnosis, such as ADHD. The mother may want one type of treatment and the father may disagree. Since both parents have the legal authority to authorize treatment, a court would have to determine who has legal decision-making and whether or not there is a final decision maker. It is unlikely an unwed mother has superior legal decision-making authority in this situation. That said, if paternity has not been established and an unwed father has not been involved with the parenting of the child, and subsequently claims authority and rights, the Criminal Custodial Interference Statute likely applies, and an unwed mother will have superior authority.

The above is my opinion and analysis based on experience in Arizona Family Courts, but no clear rule exists on the subject. It is important for unmarried parents to file with the Family Court in order to establish rights, duties and responsibilities. When everyone understands what is expected and their obligations, fewer disagreements occur. For help establishing your custodial rights, contact us today at 480-649-2905.