Parental Rights in Arizona

Studies show that the children do better when they have both parents in their lives, yet it is not unusual to see a mother trying to cut a father out of their child’s life. For unmarried fathers in such a situation, their hand is forced—they need to file with the Court to establish their rights. In most cases, the child will be better off because they did so, 

In other cases, even when the father is being permitted to see the child, filing to establish rights may still be necessary to ensure that he is the “legal parent” of the child and protects his rights to the children.  

Questions to Consider: 

• What happens if you don’t file? Will you be allowed to see the child? If you are seeing the child now, but something happens to the mother, what would happen with the children? 
• What kind of parenting plan would you want to seek? What plan would be best for your child?  

• What concerns do you have about Mother? 
• What concerns about you as a parent is Mother likely going to raise? Do you have any history of drugs, criminal activity, alcoholism, or violence? If so, what can you do to show the Court that those things are behind you? If it’s an ongoing problem, is this something where you’d be better off getting help, getting better, and then filing? 
• Is your home ready for a child to live in it?  

As an unmarried father, until you “establish”, your rights don’t exist. There are four components to what must be established, and you need to establish all four in order to make your rights equal to Mother’s: 

• Paternity. You are not legally your child’s parent until you’ve established paternity. Even being listed on the birth certificate does not necessarily mean you are considered to be a legal parent. Under Arizona law, being on the birth certificate only gives you a presumption that you are your child’s father. You still need to go get a court order to officially become your child’s legal parent. 
• Parenting Time. Parenting time refers to the schedule when the child is with each parent. Prior to the Court ordering parenting time, parenting time is technically decided by the mother. 
• Legal Decision-making. Legal decision-making is the right to make decisions on behalf of your child when it comes to their healthcare, education, religious, and personal choices. Prior to the Court issuing a legal decision-making order, this right belongs to Mother. 
• Child Support. Parents have a legal duty to support their children, and while a child support amount cannot be ordered until child support is established, you could be ordered to pay back child support. Additionally, child support must be decided whenever parenting time is addressed.  

While Arizona’s laws allow a mother to be in control before a dad establishes his rights, it’s a different story once you’re in Court and a judge is deciding what will happen. With your rights being established, no more gender preferences exist. Judges are to decide what to order based strictly on the best interests of the child. Under Arizona law, judges are to presume a child’s best interests are for each parent to share in legal decision-making and have as much parenting time as possible. Therefore, unless someone presents enough evidence to convince the judge that another arrangement is more appropriate, a judge will typically order joint legal decision-making and equal parenting time. Of course, if the judge is convinced there are safety concerns, logistical issues, or some other reasons why 50-50 would not be in the child’s best interests, the judge can order a different plan.   

Filing the Petition to Establish. The Petition to Establish is the paperwork that starts the Court process. It contains several documents in addition to the Petition to Establish, including a summons and, if a Father is on the birth certificate, a Preliminary Injunction. 

Service. You will need to serve the mother with your Petition. You can serve her in one of three ways: (1) via process server, (2) via certified mail, return receipt, delivery restricted to the mother, or (3) giving her the paperwork and having her sign an Acceptance of Service in front of a notary. Merely handing her the papers is not service. Proof that service was made needs to be filed with the Court. 

Response. The mother will have twenty (20) days to file a Response if she was served in Arizona. If outside of Arizona, she has thirty (30) days. If she does not file a Response, you can move for default. 

Temporary Orders? You have the option of filing for temporary orders. Temporary orders are somewhat common in Father’s rights cases because the mothers often are not letting the father see the child. A temporary order is the quickest option to get a court order in place. It can still take two months to get temporary orders in place—but that’s about as swiftly as the court system can move. Temporary orders are also expensive because they require a trial, and even though they shouldn’t, they also have a direct impact on the final disposition of the case. So, before filing for temporary orders, it is important to consider whether it is the right move for you. 

Disclosure, Discovery, and Evaluations. Disclosure is the process in which you must disclose to the mother any documents or other evidence you wish to use in court. Rule 49 of the Family Law Rules of Procedure require you to disclose certain items to the mother. Discovery describes the different court processes of obtaining information from the mother or a third party. In many contested custody cases, the Court will appoint a neutral third party to conduct interviews and examine evidence and make recommendations to the Court. 

Judges often give a speech to parents about the importance of the parents themselves deciding what happens with a child. Parents are in a better position to know what is best for their child than a judge is. Because a judge typically has 700-800 cases going at any one time, the judge will probably only spend a few hours on your case. For that reason, judges encourage parents to try and settle. The judge may order you to attend mediation or exchange settlement letters.  

If an agreement can be reached, the two of you will prepare and file a Parenting Plan and Child Support Order for the judge to sign.  

If you cannot reach an agreement, you will need to go to trial. Trials require substantial work. You must make sure all your exhibits and witnesses have been disclosed to the other side by the applicable deadlines. You have to prepare the exhibits and deliver them to the Court by the deadline (usually a week ahead of trial) and deliver them in accordance with the instructions in the Minute Entry setting trial. You have to prepare your Pretrial Statement, which is the most important document you’ll file in a case. You have to prepare what you’re going to present, choose whether you’ll have anyone else testify, determine your cross-examination strategy, and then you have to put on the trial itself and be ready to make objections to mother’s evidence and handle objections mother may have for your evidence.