Establishing And Challenging Paternity

Cindy Best

The Basics

Paternity only applies to the father of the child. Paternity means being declared the legal father after the child is born. Until paternity is established in accordance with the law, a child of unmarried parents is without a legal father. The proceedings to establish the maternity or paternity of a child may be initiated by either the mother, father, guardian,[1] public welfare official, county agency official, or the state. A.R.S. § 25-803(A).

In Arizona, a father who is not married to his child’s mother has no legal right to the child until paternity has been established. This means that a father can be charged criminally for possession of his own child if there are no written agreements or court orders in place. See A.R.S. § 13-1302 “Custodial Interference.” Father does not have legal right to participate in major decisions about the child, such as medical treatment, education, or religious training, without first establishing paternity.

If paternity has not yet been established, Mother legally has the right to give the child up for adoption, take the child away from Father, or make any other significant decisions without Father’s consent or permission. Notwithstanding, Mother should be advised that a later determination about disputed custody would include the court reviewing how each parent treated the other parent with regard to access to the baby or child. If a parent denies the other parent time with the child for no good reason, it will be reviewed at a later date regarding custody and could negatively impact her. Good reasons to withhold access to the other parent include domestic violence, drug abuse, mental illness, criminal behavior, and child abuse. It may be helpful to Mother to assist in establishing paternity. Until paternity is established, the child has no right to receive financial support from Father, to inherit from Father, or obtain insurance, social security, disability, etc. from Father.

Establishing Paternity in Arizona

Paternity can be established in Arizona in four (4) ways, any of which are appropriate and sufficient:

1. Voluntary establishment through the Court

The most common and easiest way to establish paternity is when Mother and Father agree who Father is. If there is agreement, the parents can jointly sign and file with the Court either (i) an affidavit in which both parents agree that named father is biological father, or (ii) an agreement that all parties will take a genetic test and have paternity decided by the results. New methods of scientific testing are nearly one hundred percent accurate. Most labs now use DNA testing.

2. Establishment by the Court after filing a legal action

Either Mother or Father files a written “complaint” with the Clerk of the Superior Court, stating the names and social security numbers of each person involved and indicating who the father is claimed to be.

3.  Establishment through the state’s Department of Economic Security (DES)

In a voluntary or disputed action, Department of Economic Security can order genetic testing, thus initiating a case. If test results establish at least a ninety-five percent (95%) likelihood of paternity, Department of Economic Security may be able to make an agreement with Father to establish paternity and, if not, Department of Economic Security can initiate a case in Court to establish paternity. DES can be contacted at each county’s office or by contacting Customer Service at 602-242-2045.

4.  Acknowledgment of Paternity

The parties may also place Father’s name on the birth certificate if both parents sign sworn statements acknowledging paternity with Department of Economic Security.

 

[1] The proceedings may be commenced by the guardian, conservator, or best friend of a child or children born out of wedlock. A.R.S. § 25-803(3).
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