On a typical day at our offices, we receive 1 or 2 calls from fathers who are being denied access to their child. We understand how difficult and frustrating it is for fathers to have their child kept from them. This is especially true when it seems like she is doing for no good reason—or just out of spite.
You are not alone in this situation. We have helped many fathers like you gain access to their child. We have helped many of these fathers go from no parenting time to equal parenting time, and in some instances, we have assisted fathers who went from no parenting time to full custody. We can help you get your rights to your child and to be the parent you want to be for your child.
Simplified 10-Step Process
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:
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:
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.
We get this call from a father at least once a day. We can certainly help you figure out what you need to do. Generally speaking, when a mother won’t let you see the child, it is time to go to Court. You do that by filing a Petition to Establish Paternity, Legal Decision-making, Parenting Time, and Child Support with the Court. When you are not able to see the child, you may also want to consider filing for temporary orders, which is usually your quickest option to having a Parenting Plan put in place. But we recommend you speak with an attorney before deciding what filing is best for your situation.
It depends. For Arizona to have jurisdiction over custody, it has to be the home state of the child. That means Arizona has to be the state where the child most recently resided for six consecutive months. If Arizona is not that state, then Arizona cannot make a custody order, and you will need to file in the state where your child has most recently resided for six consecutive months.
Possibly. Child support must be ordered unless the parties agree to a deviation, and the Court finds the deviation is in the child’s best interests. Child support is done on a formula, and when parenting time is equal, the amount (1) usually is not very much, and (2) is usually paid by the parent who earns more money. There is no gender bias in the formula that requires that it will be the father, and not the mother, who pays child support; it may be you, it may be her—it really does come down to how the formula shakes out.
You can petition the Court to change the child’s last name. You will have the burden of proof, and the standard you have to prove is that changing the last name is in the child’s best interests. What that means is, essentially, you had better have a good reason as to why the name change will benefit your child. The Court is not going to change the last name simply because, traditionally, children bore their father’s last names.
You need to file a Petition to Establish Paternity ASAP. There are deadlines for challenging paternity determinations, and a delay could cost you your chance to be a parent to your child. If the deadlines have passed, it is still possible to challenge who the father is, but it becomes much more difficult.
Arizona is a community property state. This means anything either spouse earned during the marriage belongs to both spouses.
It is possible to fix a bad ruling from the court, but it is difficult. Prior to trial, you were on even footing with the other party—you both had, in theory at least, an equal chance of prevailing.
Some parts of a Court’s ruling are not modifiable, including the division of property and an award of attorney’s fees. While many parts of the Court’s order are subject to modification, some parts are not.
There are four parts of every child custody case. The typical case has four parts to it: Paternity, legal decision-making, parenting time, and child support. Except in unusual circumstances, paternity will only get ruled on once.
Being on the birth certificate doesn’t mean you’re legally recognized as the father. When a child is born to an unmarried mother, only the mother’s rights are automatically established. The father will have to establish his rights separately.
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