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Who Has Custody of a Child When the Parents are not Married?


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In the state of Arizona, parents that aren’t married enjoy the same protective measures that married parents have concerning child custody and additional parental rights. The main factor that family courts think about when making verdicts is whether the result is for the child(rens)’s best interests instead of the parents.

While parents aren’t married to each other and there isn’t a court order establishing parental rights, the mother naturally becomes the sole legal power and has the right to make decisions on behalf of the child(ren). The child(ren)’s biological father doesn’t have any legal rights. Paternity needs to be determined prior to him acquiring parental rights and responsibilities.

According to Arizona law, until paternity has been determined, the mother may make all plans and decisions for the child(ren) without having to discuss them with the biological father. The unwed mother may also keep the child(ren) from the father, forbid him visitation, or arrangement of the child(ren)’s adoption.

An unwed woman that gives birth to child(ren) has custody of the child(ren) systematically.

You have legal custody of your child(ren) devoid of going to court. What this means is you have all the rights of a parent:

  • the right to determine who sees the child and the duration;
  • the right to limit visitation;
  • the right to register the child(ren) for school;
  • the right to acquire medical treatments;
  • the right to get public amenities for the child(ren); and
  • the right to do anything more a parent with legal custody may do.

Seeking custody

A man can contest sole maternal custody by determining paternity or through paternity establishments by the court. When the father pursues custody rights, the mother is similarly advised to do so. If there isn’t a court order, both parents are presumed under Arizona law to equally share in legal decision making for the child(ren).

Establishing Paternity

There is one main distinction between married parents and unwed parents whereas paternity is involved – unwed fathers need to first demonstrate their paternity prior to them acquiring parental rights and obligations.

There are 3 ways to legally determine the presumption of paternity:

  1. The results of a DNA test where there’s a 95% or high probability that the man is the father
  2. If each of the parents willingly, that isn’t married, sign the birth certificate of the child
  3. If each of the parents signs a witnessed and notarized declaration acknowledging the father’s paternity

When there is adequate evidence that the man isn’t the father, the judge may overrule the third way in determining paternity.

Conditions impacting custody and child support

When paternity has been determined, an unwed father typically has identical parental rights as a divorced father that was married to the mother. He may go to court and petition parenting time and an equal percentage in decision-making concerning the child(ren).

Comparable to a divorced married father, an unwed father that has determined paternity can similarly be denied parenting time when the child’s mother disapproves. An unwed mother can have sole legal and physical custody of the child if the father is dependent on drugs or alcohol, has a history of violence or neglect, or is physically inept of taking care of the child.

If the parent’s stability is an issue, the other parent could be awarded primary custody by the court. The judge may request that Child and Family Support Services perform an investigation and present its evidence to the court.

Arizona law assumes that when both of the parents raise the child, they do it in the best interest of the child. The law doesn’t favor the mother or father concerning custody anymore, presuming that any arrangement is provided for the welfare of the child. Furthermore, a lot of states are heading for joint custody. When a mother wants sole custody, she needs to give her reasons for why joint custody wouldn’t be in the best interest of the child(ren).

Factors that qualify sole or full custody

If eligible, a parent may be awarded sole physical custody of the child(ren), meaning that the child can only live with them. This may be increased to sole physical and legal custody, implying the child lives only with one parent, and that parent has every decision-making right concerning the child.

An unwed mother can be granted sole physical and legal custody of their child(ren) due to a couple of conditions:

  • In the event, the man is physically unable of taking care of the child
  • In the event, the man has a history of domestic violence
  • In the event, the man has a serious alcohol or drug problem
  • In the event, the man was not involved with the child(ren) for a period of time
  • In the event, the man has refused or disregarded making child support payments

Another component in sole custody is how old the child is. Typically, being raised in one home is in the best interest of younger children. Because the mother is usually the primary caregiver for younger children, the court often awards sole physical custody to the mother.

Regarding older children, the court also takes into consideration whether the child decides to live with one of the parents. Nevertheless, both of the parents may have joint legal custody and share in decision-making concerning the child(ren).

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