This firm has a significant background in working in Juvenile Dependency matters in addition to Family Law Matters. Often, the Department of Child Safety (DCS) will object to dismissal of the Juvenile Dependency matter until there are parenting time orders. If the child is placed with the Mother, there is room for argument that the case should be dismissed regardless of the existence of parenting time orders. However, if the child is placed with the Father, there are some complications.
The Arizona Revised Statutes, section 25, governs Marital and Domestic Relations in Arizona. However, there is a section within section 13 that creates problems for unwed fathers. Arizona Revised Statute, §13-1302(B) states: “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.” This is part of the Custodial Interference statutes which is part of the Criminal Statutes and not a part of section 25; which governs Marital and Domestic Relations in Arizona.
Section §13-1302(B) states that not only does the Father need to establish paternity, but he also needs to have custody or access determined by the court. Establishing paternity is not sufficient enough. Without having established parenting time orders, the child’s mother has authority to go pick up and take the child. This is especially problematic when the Mother poses a risk to the child; such as due to substance abuse or other reasons she may not be able to care for the child safely.
Our view on the matter: Section §13-1302(B) seems entirely outdated; especially since the term “custody” is no longer used. The family courts use the terms “parenting time” and “legal decision-making authority.” However, as outdated as this may be, it still creates a real problem for unwed fathers and their legal ability to protect children from unfit mothers. The existence of §13-1302(B) is likely contributing to the continued belief that Arizona is a “Mother’s State” and that Father’s have less legal rights to their children than Mothers do. The reference to “Mother’s State” is the wrongful belief that Mother’s are given preferential treatment over Father’s before the Court when the Court is deciding issues of parenting time and legal decision making authority.
If you need assistance with establishing paternity, legal decision making-authority, and/or child support, schedule a free consultation today. We’re happy to help.
