Q: I am not married and my kid’s mom is telling me that I can’t see my daughter. I talked to some of my co-workers and they told me that Arizona is a Mother’s state and that I am going to be lucky to see my daughter. Me ex told me that I can only see my daughter supervised at her house and only if I pay her $500 a month in child support. I make $15.00 an hour and can’t afford this. What can I do?
Thank you for your question. Unfortunately this is a very common concern for Fathers that I represent. There is a lot of misinformation out there, from other people as well as the Internet and television. The first thing to do is to take a deep breath. There are a lot of dads in your situation and the law in Arizona protects your right to parent. I’ll break your question into several sections so it is a little easier to digest and retain.
Q: Does marriage have an impact on legal decision-making (child custody), parenting time (visitation), and child support?
This is a great place to start. The short answer is that it does and it doesn’t. Not surprising for an attorney to start with a tricky answer, I know. Marriage does impact these family law issues indirectly by creating an extra step (paternity). If parties are unmarried, the Court must first establish that the father is the child’s natural/biological father. This can be done either by stipulation (where the parties agree) or through a petition to establish paternity. When a child is born, the birth certificate can be signed by the Father at the hospital. This voluntary acknowledgement of paternity is used by the Court to determine paternity. If you have signed the birth certificate and it has been six (6) months since you signed you are the child’s legal parent. You, mother, or the state would still need to file a petition to establish but at that point you can no longer challenge the voluntary acknowledgement. If both parents are in agreement that you are the father then you can simply stipulate or agree and the Court can issue an order establishing paternity of your child.
If you are not married and you have not established paternity of your daughter, you would need to establish paternity before the Court can enter any orders regarding legal decision-making authority, parenting time, or child support. So yes, marriage does matter due to the requirement of a paternity finding in cases involving a child born out of wedlock. If you are married and the child was conceived during the marriage, the Court presumes you are the biological parent so paternity is established automatically.
The good news is that this is the only major impact that marriage has on legal decision-making, parenting time, and child support. Which if you think about it is only fair. There is no requirement that parent’s be married before conception and therefore there should be no difference in a parent’s rights whether he/she is married or not. There are more and more children that are born out of wedlock and if trends continue there will be many more. You are not alone.
Q: Can your daughter’s mother keep the child from you?
The answer is not generally. Arizona has protections for parents. The policy in this state is that each parent should have frequent, meaningful, and continuing time with his/her children:
As a matter of public policy, absent evidence to the contrary, “it is in a child’s best interest: To have substantial, frequent, meaningful and continuing parenting time with both parents.” See A.R.S. §25-103(B). Moreover, A.R.S. §25-403.02(B) requires a Court to adopt a parenting plan “that MAXIMIZES their respective parenting time.” (Emphasis added).
There are reasons that the Court can limit a parent’s rights to see his/her child/ren. These can be as benign as a logistical impediment such as the distance the parents live apart or the distance between one parent’s home and the child/ren’s home. Other reasons for parenting time limitations can be if a parent has substance abuse issues or a criminal history that concerns the Court. Other concerns can be the environment of each party’s home, other individuals that have access to the child/ren.
The Court’s aim is to do what is in the best interest of the child/ren. As stated earlier what is generally best is that each parent gets parenting time.
Q: That is great on paper. What if she just won’t let me see my daughter?
This is a common issue in family court, especially with parents that have not been to court before. If there are no orders in place (you’ve never been to court before), the parties have equal rights for the children. Your ex does not have any more right to your daughter than you do. This can make things very tense, as parents can be concerned that they will not get the child back if they allow you to have time. This is a very real concern because if they do let you have the child there is no court order that would require the child to be returned. It is at this point in the conversation that I tell my clients that they should not withhold the child even though there is nothing preventing it. It is not okay to withhold. If your ex is withholding you can take her to Court to gain access to your child. Two wrongs certainly do not make a right in this particular scenario.
Just as every child is different, every situation is different. There are some parents that are okay with exchanging their children without a court order on a temporary basis. This may work for you. My advice is regardless of how well things are working there is always a possibility that they wont work that way forever and so it is always beneficial to get orders for both of you to follow.
If you are not ready to go to Court you can enter into a parenting agreement. Be careful. In Arizona agreements in writing are Rule 69 agreements. This means that if an agreement is in writing between the parties it is binding on the parties and enforceable. Make sure that you indicate somewhere in your agreement that the agreement is temporary so that you can figure out permanent orders. If you do not indicate that it is temporary the Court may enter it as permanent orders, which can be problematic.
If you are instead going to Court, it is likely advisable to request Temporary Orders when you file. Temporary Orders are the orders that you are to follow between the temporary orders ruling and the final trial. If you cannot work a plan out amongst yourselves it is imperative that you file and ask for relief from the Court. The sooner that you file for temporary orders, the sooner that the court can set a hearing. It generally takes 30 or so days for the hearing to be set after the motion is filed. Unfortunately there is not much that can be done outside of agreement during this time. You can ask the court for make-up time for any time missed. It is up to the court’s discretion as to whether they award any time. If you do not reach agreements; do not file for temporary orders; and your ex will not allow you to see your child, you may have to wait anywhere from 6-10 months for final trial. That is why it is important to not only know your rights but to enforce them if need be.
Arizona no longer uses the term “custody.” What used to be custody is now split into two issues:
- Legal Decision Making Authority
- Parenting Time
Legal Decision Making Authority is the ability to make decisions for the child/ren in three (3) areas:
All other decisions are made by the parent that is exercising parenting time when the decision arises i.e. what the child eats for dinner or what movie he or she is seeing on Saturday. The major decisions listed above are made by one or both of the parents depending on the orders regarding legal decision-making authority.
There are three (3) major types of legal decision-making orders:
- Sole legal decision making
- Joint legal decision making
- Joint legal decision making with final decision making authority
Parents that have Sole legal decision making authority have the ability to make decisions for the child. He/she is required to keep the other parent updated on these decisions.
Parents that have joint legal decision making authority make decisions together. Neither parent has more of say in the decision. If the parties are unable to make a decision they will likely attend mediation, or the tie may be broken by physician or educator (if agreed), or the parties go to court. This is the most common legal decision-making order.
Parents that have joint legal decision making authority must try to make decisions together. If the parties are unable to make decisions together the party with final decision making authority gets to break the tie and make the decision.
As a father you can be awarded any of these three types of authority. You are no more or less likely to be awarded sole, as you are joint. A.R.S. §25-403, discusses what factors are considered when the Court enters these orders.
Arizona is not a Mother’s state. Arizona’s public policy is that both parents, unless there is evidence to the contrary, should be involved with decision making for his/her children as well as maximizing both parent’s parenting time.