Child Custody and Parents that Are Not Married
Determining child custody can be a difficult task to navigate, especially when parents disagree. The best interests of the children should always be at the forefront, but the emotions associated with the end of a relationship can cloud even the best judgment. Understanding the legal proceedings and navigating the courts can feel overwhelming even under the best of circumstances.
In most cases, people assume that child custody agreements are only necessary when a marriage ends, but this is not always the case. Unmarried couples are often put into situations where they must create a child custody agreement as well.
Unmarried Parents’ Rights in Arizona
In many cases, unmarried parents can agree to share parenting responsibilities, including decision making and parenting time. However, some parents experience difficulty coming to an agreement once the relationship ends. Others may simply want to establish a legal parenting plan to ensure their agreement is enforceable in the future. Thus, custody agreements between unmarried parents are not uncommon, and present some unique legal questions.
The most important question to consider in these situations is this: what happens to the children when parents are not legally married? In many situations, there must be proof of parenthood provided in order for custody to be granted. Here is a brief overview of what the state of Arizona requires regarding child custody agreements for parents who are not married.
The primary aim of any child custody arrangement in Arizona, regardless of the marital status of the parents, is ensuring that the best interests of the children are considered. Whether parents are married can be important for custody purposes, but generally, all Arizona parents have the same rights whether they are married or not. However, the details of who receives initial custody over the children can be impacted if their parents are not legally married. The two main aspects that must be in place before parenting time can be finalized are legal parenthood and paternity.
Unmarried Mother’s Rights in Arizona
Establishing custody and parenting time is often much simpler for the mother. Unmarried mothers in Arizona are automatically granted legal decision-making rights and physical custody because of their biological connection with the child.
The power to make all legal decisions means that the mother is able to decide what happens to their child or children. This could include placing the child for adoption, limiting or eliminating visitation with the father, and making any and all necessary medical decisions. This power is firmly in place until paternity is established and the courts mandate a new decision.
Unmarried Father’s Rights in Arizona
Unmarried fathers in Arizona have a much more difficult process to navigate in order to obtain custody of their child or children. Since legal guardianship is automatically granted to the biological mother, the father must legally establish his custodial duties to be granted custody by the courts. The first step in this process is establishing paternity.
There are several accepted ways for paternity to be established in Arizona.
In the case of establishing paternity, stipulating occurs when both parties agree on paternity. Once both parties have formally agreed on paternity, they can move forward with a written order to establish the custody agreement. In order for a stipulation to be considered official, it must be a written statement that is witnessed and notarized by the courts. If evidence is presented that contests this paternity, a judge may overturn the ruling.
Petition to Establish Paternity
If one or both parties do not agree to stipulate paternity, then one party must submit a petition to establish paternity. This means that another method must be utilized to determine whether or not the man in question is the biological father of the child. There are two ways that this can be accomplished.
The signature of the biological father should be on the birth certificate. This is typically done at the hospital or at the time of birth. This establishes paternity so long as at least six months have passed since the birth certificate was signed.
In the event that the birth certificate cannot be used to establish paternity, the courts may request a paternity test. This is typically done through a DNA test. In order for this test to establish paternity, the test must produce a 95% or higher probability that the man in question is the biological father.
Once paternity has been established, the parents are able to move forward and establish their custody agreement. Depending on circumstances, the involved parties will either pursue a full or joint custody agreement.
Joint Legal Decision Making and Parenting Time in Arizona
The courts will typically determine that it is in the best interest of the child to have time with both parents and will establish a joint decision making agreement. This means that in circumstances involving unmarried parents, both parties will work together to make any and all decisions regarding the child.
Another aspect of a joint custody arrangement is parenting time, which determines where the child or children will live and how often they will see each parent. If the agreement is equal parenting time, then each parent will have the same amount of time with the child or children.
In some cases, the courts will establish a sole residence for the child or children. This means that one parent will be the primary caregiver, and the other parent will have scheduled visitation with the child or children. This schedule is set by the courts and, as always, strives to maintain the best interest of the child.
Establishing Legal Decision Making and Parenting Time in Arizona
There are certain things that must be established when parents agree to joint legal decision making and parenting time in Arizona. The state prefers a co-parenting model over a traditional child custody model. This means that ideally, the parents will work together to determine a plan to best meet the needs of their child or children. In most cases, this involves the child spending time with both parents and the parents sharing decision-making rights.
In the state of Arizona this is accomplished using a parenting plan. This plan sets out a clearly defined schedule and custody arrangement that is used to ensure that the parents and children receive the time and support that they need.
This process can be daunting, but the parenting plan is a great tool to assist both parents and children with any adjustment. In the process of establishing a parenting plan, there are several major factors for both parents and the court to consider. Some of these factors include:
- The age of the child or children in question
- The maturity level(s) of the child or children involved
- The personalities of each family member
- The established bonds and relationships between parents and child or children
- The flexibility of family schedules
- Any special needs of parents or children
- The ability of the parents to communicate well
- The cultural or religious practices of various family members
Once the plan has been completed, it is submitted to the courts, approved by a judge, and made into an established piece of the child custody orders. When the parenting plan is officially in place, it will be fully enforced by the court and both parents must abide by it. If either parent does not follow the established parenting plan, they are subject to reprimand or punishment by the courts
In some cases, despite the best efforts of both parents and the court, joint legal decision making and parenting time plans are not possible. Under these circumstances, one parent can petition to be granted sole legal decision making or parenting time rights.
Sole Legal Decision Making and Parenting Time in Arizona
In Arizona, once paternity has been established and a custody order is in place, there is no favor shown to one parent over the other. It is the assumption that the best course of action for the proper growth, health, and development of a child is to have regular time and contact with each of their parents.
If one parent believes that the other should not have decision making or parenting time rights, they can petition the courts to be granted sole decision making or parenting time rights. If a parent requests sole decision making and parenting time, they must provide irrefutable proof that being involved with the other parent is not in the best interest of the child or children.
There are a few factors that can help the courts determine whether a parent should lose their decision making or parenting time rights.
- Physical Incapability—If one parent is unable to physically care for their child or children then they may lose parenting time rights.
- Substance Abuse—A parent may lose their decision making or parenting time rights if they struggle with substance abuse. It must be clearly provable in court that said parent’s substance use issues are detrimental to the health, growth, or safety of a child.
- Domestic Violence—If a parent has a history of domestic violence charges they may lose their decision making or parenting rights. Again, the other parent must prove in court that spending time with the abusive parent is detrimental to the child or children.
- Neglect or Lack of Involvement—A parent who neglects their child’s needs or is not actively involved in the life of their child or children can potentially lose decision making and parenting time rights.
- Age(s) of Child—The age of the child or children involved in custody cases is also taken into account. For younger children, it may be in their best interest to grow up in a single household rather than moving between both parents. Older children may express their wishes regarding the parent they prefer to stay with.
It is important to note, however, that decision making and parenting time rights are not always linked. There may be cases when a parent does not have equal parenting time rights, but does have a say in the decision making for their child or children. In the same way, some parents may not have decision making rights, but are granted some parenting time. Ultimately, the final arrangement will be determined by the court and focused on the best interest of the child or children involved in the case.
Legal Representation for Unmarried Parents in Arizona
Regardless of the circumstances involved, it can be difficult to navigate custody agreements when tensions and emotions may run high. Submitting the necessary paperwork, attending the correct court appearances, and understanding the proper legal proceedings can often feel overwhelming. Having trusted, experienced legal representation can provide you with peace of mind and make the process much easier.
*Editor’s Note: This article was originally published May 28, 2021 and has been revised August 8, 2022.
Jonathan Roeder, Co-Founder of The Valley Law Group, is an Arizona native who has dedicated his life and career to the service of others. After graduating salutatorian of his high school class, Jonathan attended beautiful and prestigious Pepperdine University, where he majored in Political Science. During his tenure at Pepperdine University, his passion for helping others grew after securing a clinical position with a residential treatment center for juveniles with substance addictions. Post-graduation, Jonathan returned to Arizona and served as a residential manager for mentally and physically disabled homes.