Establishing paternity in Arizona is the legal process of determining the biological father of the child. With an unmarried couple, paternity establishment is also the first step toward asserting parental rights. Until the man is proven to be the child’s biological father, or voluntarily acknowledges paternity, he has no enforceable parental rights to access and custody. If the child is in the mother’s care and control, then she may allow or withhold visitation as she chooses.
The child custody issues that unmarried parents encounter in Arizona differ in some ways from those faced by their married counterparts. (The parents might be married, but not to each other.) With a child born to married parents, the husband is presumed to be the child’s father. When unmarried parents have a child, but paternity, legal decision-making, and parenting time have not yet been established, then the instability and unpredictability of each parent’s access to the child can be very detrimental for everyone involved.
An unmarried father desiring regular, meaningful contact with his child should consult an experienced paternity establishment lawyer in Phoenix, Arizona. Just as a mother desiring joint legal decision-making with scheduled parenting time for the child’s father should consult with a family lawyer about creating a parenting plan.
What follows are some important considerations in establishing paternity so that both parents’ rights and responsibilities can be asserted and legally enforced.
If you are an unmarried father who wants legal decision-making and a dependable parenting time schedule, then you must first establish that you are indeed the child’s biological parent. Logically, paternity establishment always comes before child custody proceedings. Only after paternity is established (either by the father’s voluntary acknowledgment or by the court’s finding of paternity upon DNA evidence) can an unmarried parent seek custody.
Importantly, a man has the right to petition the court to establish paternity on his own initiative, with or without the mother’s cooperation. Even after paternity establishment and with the father already paying child support, it is still necessary to petition the court for an order granting parenting time. (Although it is possible that a person close to the child is also the biological father, standing in loco parentis to the child does not, in itself, establish paternity or father’s rights.)
Every putative father should insist on DNA genetic testing to establish the basis for his duty to pay child support with clear scientific evidence. Along with the obligation to support one’s natural child comes the right to share in the care, custody, and control of that child. Because establishing paternity is a critical first step, lawyers and judges rely on DNA genetic testing through approved certified laboratories. A.R.S. § 25-814.Trusting one’s feelings and affections, or believing the mother’s assertion of paternity, does not make it factually so. This is one area where you need certainty.
Establishing paternity by DNA genetic testing is important on many levels. The father may have an inheritable medical condition, making genetic testing necessary for the proper care of the child. With paternity established, a child may be covered by the father’s medical insurance or may be eligible to receive payment as a beneficiary on a life insurance policy. In certain situations, a child may qualify for Social Security or VA benefits following the father’s disability or death. Establishment of paternity may affect the settlement of the parent’s probate estate, too, as when the father dies intestate without leaving a Last Will and Testament.
There are three ways to establish paternity of a child under Arizona paternity establishment law:
There are four simple presumptions of paternity in Arizona law. In general, a man is presumed to be the child’s father if:
Those presumptions are rebuttable with clear and convincing evidence, so they may be challenged. Additionally, if a court decree established another man’s paternity of the child, then the presumption of paternity is rebutted. A.R.S. § 25-814.
The second way for unmarried parents to establish paternity is by acknowledging paternity in a written statement that is notarized or witnessed. A.R.S. § 25-812. The statement is a voluntary acknowledgment by the mother and father that the child is biologically theirs, and so the document establishes paternity. The voluntary paternity acknowledgement is filed with the court, the Department of Economic Security (DES), and Department of Health & Human Services (DHHS).
The voluntary paternity acknowledgment may be used to rebut the marital presumption that the husband was the father of a child born to his wife. If the mother was married, her husband or former husband is presumed to be the father of the child (as discussed above). If an acknowledgment is filed by the biological father who was not married to the mother, then her husband or former husband may give his written consent to the other man’s establishment of paternity over the child.
The acknowledgment of paternity must be truly voluntary. Before signing, both parties must be provided with notice of the alternatives and legal consequences of executing the document. By acknowledging paternity, both father and mother have equal constitutional parental rights and equal obligations to support their child.
The parties may also “agree to be bound” by the results of a DNA paternity test. The laboratory analyzing the genetic samples must be certified. Should the DNA test affirm paternity by at least a 95% probability, the laboratory’s affidavit is usually sufficient to establish legal paternity.
The voluntary paternity acknowledgement and laboratory affidavit are two options that, when filed with the clerk of the court, result in a paternity order being issued by the judge with the same force and effect as a judgment. The court sends a copy of its paternity order to DES and DHHS, greatly simplifying enforcement of child support.
Because of the importance of paternity establishment, the purported father should consider obtaining a DNA test before signing a paternity acknowledgment to assure that he is the child’s biological parent by a 95% or more probability. If for some reason the mother does not consent to DNA testing or the father seeks to rescind his acknowledgment because of fraud, misrepresentation, or other misconduct, then talk to an experienced lawyer with the Stewart Law Group about court-ordered genetic testing and other legal alternatives.
The third way to establish paternity in Arizona is by court proceedings to adjudicate the legal father of a child born to unmarried parents. This is a paternity lawsuit. A.R.S. § 25-806.
The father, mother, guardian, or conservator (and depending upon the circumstances, a public welfare agency or the State of Arizona) can file a petition to establish paternity with the clerk of the court. A.R.S. § 25-803. The petition can be filed during the mother’s pregnancy or after the child is born. The only caveat is that the petition must be filed before the child turns 18 to establish a parent’s duty to pay child support or past child support. A.R.S. § 25-804. But paternity proceedings may be initiated after the child reaches adulthood to prove, for example, that he or she is an heir of the parent.
Do be very careful about default judgments in paternity lawsuits. If the father does not file a timely response to the petition, then the judge can enter a judgment of paternity and order payment of child support. If a DNA genetic test was ordered, but the putative father failed to show up for the test, then the judge can enter a default judgment of paternity and issue child support orders. A.R.S. § 25-813. Once a judgment of paternity is entered, both retroactive child support (if applicable) and current child support will be ordered. A.R.S. § 25-809.
With paternity established, the parties can start working toward a parenting plan.
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 being 18 or 19 years, unless the child emancipates 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.
When there is a problem, both parents find out quickly that informal custodial arrangements are just that – informal, problematic, and unenforceable. Assuming the child resides with the mother, the father’s relationship with his son or daughter is subject to the mother’s whim when it comes to access. The father may be noncompliant in adhering to their informal access arrangement by not returning the child to the mother 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 plan with a parenting time 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 parents need not rely exclusively 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 the child over 100 miles away in Arizona without notice to the other parent and opportunity for a relocation hearing. Because the court’s order is in place, emergency measures could be taken to stay any relocation.
Lastly, the parenting time awarded each party does affect child support calculations. Although not the only consideration, parenting time days may increase or decrease a parent’s support obligation under the Arizona Child Support Guidelines.
“When I was first confronted with the possibility of divorce I became aware of the complexity of the legal proceedings. Robert Howard and Stewart Law Group came highly recommended from my colleagues in the medical community that have been through similar situations. Mr. Howard helped me navigate all of the “twists and turns” of child custody and the financial end of the divorce. Mr. Howard used his many years of experience to protect my assets and my precious parenting time with my children. If you are looking for a well run practice such as Stewart Law group and a honest, attorney with integrity to fight for your rights during a divorce you have come to the right place. Respectfully, Chris Cavalcant.”
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August 7, 2018
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