Mother's Rights in Arizona

Mothers' Custody and Parental Rights

Are you married or unmarried?

Mother's rights are different if you are unmarried or if you are married going through a divorce.

Married Mothers

If you are a married mother, you and the child’s father are presumed to have an equal legal right to see the children and participate in major decisions about the children, such as medical treatment, education or religious training. Legal decision-making refers to who makes the major decisions for your children such as health and education.

Married mothers (and married fathers) have joint legal decision-making until a Court says otherwise. The parenting time schedule determines when each parent gets to see the children.

Unmarried Mothers

If you are an unmarried mother, and paternity and/or the father’s rights have not yet been established, you have a lot more power than an unmarried father when it comes to your children. You may give the child up for adoption, take the child away from the father, not allow the father to see the child at all or make any other significant decisions all without the father’s consent or permission.

However, once paternity is established and the unmarried father files a Petition to Establish, he may potentially obtain rights to see the child and make decisions regarding the child.

Custodial Interference in Arizona Law

The Statute in Arizona A.R.S. 13-1302. Custodial interference; child born out of wedlock; defenses; classification A. A person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person does one of the following:

  1. Takes, entices or keeps from lawful custody any child, or any person who is incompetent, and who is entrusted by authority of law to the custody of another person or institution.
  2. Before the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.
  3. If the person is one of two persons who have joint legal custody of a child takes, entices or withholds from physical custody the child from the other custodian.
  4. At the expiration of access rights outside this state, intentionally fails or refuses to return or impedes the return of a child to the lawful custodian.
  5. If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody or access is determined by a court.

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Married Mothers

Married mothers (and married fathers) have joint legal decision-making until a Court says otherwise. The parenting time schedule determines when each parent gets to see the children.

Parenting time for divorced couples can be an equal arrangement where the children live with each parent approximately the same amount of time. If one parent is the primary residential parent, he or she has more than 50% of the time with the children. So, the two choices are either equal parenting time or a primary residential parent who spends more than 50% of the time with the child.

Decision-making and parenting time can be handled in a variety of ways. You can have sole legal decision-making and equal parenting time. You can also have joint legal decision-making where one parent spends more than 50% of the time with the child. Thus, married parents are viewed equally in the eyes of the law until, and unless, evidence is presented to the Court that shows equal parenting time and/or joint legal decision-making are not in the child’s best interest.

In Arizona the law now recognizes the equal rights of fathers during separation and divorce. Courts in Arizona no longer follow the “tender years doctrine” where mothers were favored when it came to determining parenting schedules for young children.

Married parents are considered to have joint legal decision-making and equal access to the children. The courts cannot favor one parent over another based on gender, however, and must take the facts of each case into consideration when they make a decision.

You or your husband may also be required to pay child support for your child to the other parent. Child support is calculated according to many factors, including both you and your husband’s income and the parenting time schedule in effect.

If you are able to come to an agreement with the father of your child you are presumed to have joint legal decision-making and equal parenting time.

You are allowed to agree to an arrangement different than the presumed joint legal decision-making and equal parenting time that you already have.

You also may be able to come to an agreement on a number for child support to be paid or an agreement to waive payment of child support completely. Once an agreement is reached, it is only a matter of getting the correct documents together.

Whenever you are dealing with official documents it is a good idea to have experienced family law attorneys help you to make sure that everything is done correctly and that you understand the consequences of what you are signing.

If you and your husband cannot agree on joint legal decision-making and/or a parenting plan, the Court will decide for you.

Conduct such as domestic violence, drug/alcohol abuse and criminal activity are good reasons for a Court not to grant joint legal decision-making and equal parenting time.

Unmarried Mothers

If you are an unmarried mother, and paternity and/or the father’s rights have not yet been established, you have a lot more power than an unmarried father when it comes to your children. You may give the child up for adoption, take the child away from the father, not allow the father to see the child at all or make any other significant decisions all without the father’s consent or permission.

However, once paternity is established and the unmarried father files a Petition to Establish, he may potentially obtain rights to see the child and make decisions regarding the child.

Legal decision-making refers to who makes the legal decisions for your children such as health and education.

Unmarried mothers have sole legal decision-making until a Court says otherwise.

However, once the child’s father files a Petition to Establish, Courts will presume that joint legal decision-making and equal parenting time are warranted unless evidence is presented that shows joint legal decision-making and equal parenting time are not in the child’s best interests.

The court or you and your partner can decide whether or not joint or sole legal decision-making is best.

In joint legal decision-making, you and the other parent will make all decisions together after consultation. In sole legal decision-making, one parent has the legal right to make all decisions.

The Parenting Time Schedule determines where the children live and when they see each parent.

Again, it can be a joint, or equal, arrangement in which the children live with each parent approximately the same amount of time.

If one parent is the primary residential parent, he or she has more than 50% of the time with the children. So, the two choices are either equal parenting time or a primary residential parent who spends more than 50% of the time with the child.

Decision-making and parenting time can be handled in a variety of ways. You can have sole legal decision-making and equal parenting time. You can also have joint legal decision-making where one parent spends more than 50% of the time with the child.

Unmarried Parents

UNMARRIED MOTHER'S RIGHTS

In Arizona, if you are an unmarried mother, you don’t have to do anything to gain rights to your child. Unmarried mothers have all of the rights to the child until a Court says otherwise or that unmarried mother agrees with the unmarried father to give him rights to the child.

UNMARRIED FATHER'S RIGHTS

Once an unmarried father establishes paternity and files a Petition to Establish, he may gain rights to the child. There are a number of ways to establish paternity as the child’s father. The most common, and also the easiest, way is possible when the mother and the father both agree who the father is.

AGREEMENTS BETWEEN UNMARRIED PARENT

When there is agreement, and both parents are willing to work together, it is just a matter of getting the right paperwork to the right place. The parents can sign an Affidavit of Paternity and file it with the court. The court will also want to know the parenting time and legal decision-making arrangements as well as the child support.

Frequently Asked Questions

I just had my boyfriend's baby. We are not married, what are his rights?

He has no parental rights until paternity is established. That does not mean, however, that the Father should be denied time with the child. A later determination about disputed custody will 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. Good reason could include domestic violence, drug abuse, mental illness, criminal behavior or child abuse.

My baby's father is on the birth certificate signed by the hospital staff; doesn't that prove he is the father?

If it is uncontested, yes it does.

Can he be charged criminally for having possession of our child? If he obtains paternity does that mean he can be required to pay child support?

Yes, it is possible if he has not established paternity and if there are no written agreements or court orders in place.

If he obtains paternity does that mean he can be required to pay child support?

Yes. Every parent must pay for their children, whether they live at the house or whether you must pay the other parent who cares for them.

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