The custody issues that unmarried parents encounter in Arizona differ in some ways from those faced by their married counterparts. When unmarried parents have a child, but paternity, custody, and parenting time have not yet been established, then the instability and unpredictability of each parent’s access to the child can be, and frequently is, very detrimental for everyone involved.
Perhaps you are a father wanting regular, significant access to your child, but don’t know how to go about asserting your legal rights. Perhaps you are the child’s mother and need to provide the father with access, but don’t know how to work through the many details of creating a parenting plan. Here are a few recommendations to help clarify your custody and parenting time rights and responsibilities.
If you are an unmarried father desiring equal and shared child custody, or a dependable parenting time schedule, then you must first establish that you are indeed the child’s natural father. Before paternity is formally established, whether by the father’s acknowledgment or by a court’s finding of paternity, an unmarried father has no enforceable legal rights to physical custody or visitation with his child. Importantly, a man has the right to petition to establish his paternity on his own initiative, with or without the mother’s cooperation. Even if paternity has been established, and the father is already paying child support, it is still necessary to petition the court for an order granting parenting time, or access.
Every potential father should insist on a paternity test to establish, with clear scientific evidence, the basis for his duty to pay child support. With the obligation to support one’s natural child comes the right to share in the care, custody, and control of that child. Because paternity is a critical first step, we rely on DNA genetic testing through approved certified laboratories. Trusting one’s feelings and affections, or believing the mother’s assertion of paternity, does not make it factually so.
Either parent can seek to gain primary custody of the child. The court will decide custody based upon what is in the child’s best interests, which could include removing the child from the mother’s home in certain situations. The factors that the court must consider in child custody or visitation disputes between unmarried parents are substantially the same as those applied in Arizona divorce cases.
Although an informal parenting agreement between unmarried parents may work in the interim, it is not a good solution for the long term. The long term, of course, is 18 years, unless the child becomes emancipated at a younger age. Informal parenting arrangements can be helpful for some couples for a short while, but they do not help resolve problems when there is a conflict.
Although not every child resides with his or her mother, that is still the most likely scenario. When there is a problem, both parents find out quickly that informal custodial arrangements are just that — informal, unenforceable, and problematic. On the one hand, the noncustodial parent’s relationship with the child is subject to the mother’s discretion, or whim, when it comes to access. On the other hand, the custodial parent may find the father noncompliant in adhering to their informal access arrangement by not returning the child on time as agreed. It is possible that one parent could even relocate to another state with the child without the other parent’s consent.
A court ordered parenting schedule benefits the mother, the father, and the child. A parenting plan provides a defined, predictable custody arrangement that delineates the terms of access that both parents must abide by, and upon which the child learns to depend.
The court’s order is enforceable, so the parties are not reliant on each other’s good will to strengthen and maintain a solid parent-child relationship. Enforcing the court’s order may include, for example, preventing a parent from relocating with the couple’s child to another state without a hearing. Because the court’s order is in place, emergency measures could be taken to stay any relocation.
Also, the amount of parenting time a party is awarded greatly affects the amount of child support that the parent is obligated to pay. Although not the only consideration for a parent, it is important to know that the amount of parenting time does increase or decrease the support obligations under the Arizona Child Support Guidelines.