by Kaine Fisher
According to the Center for Disease Control and Prevention’s website, and as of 2010, over 40% of children born in the United States are born to unwed parents. This poses some interesting legal issues when it comes to parental rights, especially where a biological father is concerned. It is not uncommon to hear a situation like this:
My girlfriend and I have a 5 year-old son, but we just broke up. Do I have any rights? Is it wise for me to have some legal document in place to formalize my parent-child relationship?
First, the answer to the second question is a resounding yes! This is a highly complicated area of law with many pitfalls for the unwary. Getting the competent advice of a qualified family law attorney is critical to making sure your rights are protected and your relationship with your child is preserved.
It is important to understand that under Arizona law some terminologies have changed – legal decision- making is the term du jour for custody, and designates a parent’s ability to make major decisions for a child pertaining to such things as education, health care and religion. Parenting time has replaced the term visitation and refers to actual time the child will be spending with both parents. This encompasses such things as a regular access schedule, summer schedule, holidays, vacations, transportation arrangements and the like.
Let’s go back to the proposed question about the father and his son though. There are a multitude of issues and complexities to consider. For the sake of this article we will assume that the parents and child reside in Arizona and that there are no interstate jurisdictional issues which complicate things immeasurably.
A Petition must first be filed with the court before an unwed father can begin to assert or enforce his rights or for a child support order to be entered. The first order of business for the court is to determine whether paternity has been conclusively established. Under Arizona law there are several methods to establish paternity. The simplest is for the father to voluntarily list himself on the child’s birth certificate along with the birth mother at the hospital when the child is born. Additionally, paternity can be established through genetic testing, or if the father files an appropriate acknowledgment with the court. It is important to note that under Arizona law a child born out of wedlock is presumed to be under the legal decision-making authority of the mother until paternity is established and legal decision-making or access is otherwise determined by a court. One can find this presumption in Arizona’s criminal code regarding the crime of custodial interference, and as one can imagine, this provision causes significant complications for unwed fathers. This provision should serve as a fair warning to any prospective father who has not yet sought court intervention. Even though things may seem to be working out with your child’s mother at the moment, it is frankly not wise to wait until there is a problem before taking appropriate steps to solidify your decision-making and parenting time rights. Why is that? Well, even if a father is listed on a child’s birth certificate, he has absolutely no ability to enforce agreements between himself and the child’s mother (even if they have been condensed to a signed writing) unless those agreements have been formally adopted by the court. In the unfortunate event the child’s mother decides to ignore verbal or even written agreements she made with the father, father is without an immediate remedy and he might waste precious time before something can be done about it. In any event, a father should always consult with an experienced attorney before filing a paternity petition.
Parental rights stem from the constitutional protections afforded by the Due Process clause of the 5th and 14th Amendments. These legal decision-making rights are therefore protected as fundamental rights. Legal decision-making rights are automatically vested in married parents and birth mothers. Those very same rights, however, are not vested automatically to an unwed father. Again, as if saying it once or twice were not enough, it is important that an unwed father take steps to solidify the parent-child relationship to assert his rights. In fact, the Arizona Supreme Court has stated that “[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘coming forward to participate in the rearing of his child’ his interest in personal contact with his child acquires substantial protection under the Due Process Clause.”
Now, once paternity has been established, there is some promising news for unwed father. A.R.S. § 25-103 states it is also the public policy of Arizona that it is in the child’s best interests to have substantial, frequent, meaningful and continuing parenting time with both parents. This could very well mean he is entitled to equal parenting time unless the child’s mother can establish a good reason why such arrangement would not be in the child’s best interest. The same goes for joint legal decision-making. The overarching concern for the court will be the child’s best interests. The court will look to A.R.S. § 25-403 where there are a host of factors that are considered, things such as the child’s relationship with each parent, schooling, the child’s health, the habits of the respective parents, economic security, etc. The parents are free to come to their own agreement on these issues, but the court must still find that the agreements are in the child’s best interest.
What about child support? This consideration involves an entirely separate process governed by a formulaic framework. Child support determinations are made pursuant to A.R.S. § 25-320 – or more affectionately known as the Arizona Child Support Guidelines. When making the determinations as to how the child will be financially provided for, the courts use a formula for determining the child’s needs and base the relative amounts from each parent according to their fractional share determined by comparing the incomes of the parents. Along with the support amount, the court will also address things like who provides the health insurance, how will the uninsured medical expenses be paid for, and who gets the dependency tax exemptions each year. Under some circumstances, a child support award can go back three years so always look to your attorney to educate you on how the Arizona Child Support Guidelines might impact your particular situation.
One final consideration is that of attorney’s fees. Under A.R.S. § 25-403.08 and A.R.S. § 25-324 either party to a proceeding pursuant to a petition for paternity, legal decision-making or parenting time may make a request for their attorney’s fees, costs or other expert witness fees to be paid by the other party when there is a financial disparity in the parties’ relative income or resources. Additionally the court will consider things such as the reasonableness of the parties’ positions, not filing petitions with the court in good faith, not filing petitions based on fact, and/or filing a petition with the court with the intent of harassing the other parent.
While it may be that unwed fathers suffer from an initially unfavorable position in the law, they still have rights and protections under the law. And with a good lawyer in your corner, you can make sure those rights are protected and enforced and you can be confident that your relationship with your child will be preserved.
To further discuss family law issues, you can reach Kaine Fisher, Chair of the Rose Law Group Family Law Department, at 480-240-5649 or kfisher@roselawgroup.com
