For many years, fathers in Arizona have not been treated fairly when their children were born out of wedlock. Recently, the Arizona Court of Appeals changed that. Children born out of wedlock in Arizona are in the sole care and custody of the mother until a court orders otherwise. This makes sense because the maternity of a child is beyond question, while that is not the case with paternity.
However, Arizona has long had statutes that say that when a father has established paternity, he has a right to access to his child and that one parent may not deny access to the child to the other parent. For years, however, courts have not held that these statutes mean that a mother of a child born out of wedlock for whom there is no custody order may not move a child out of state without a court order or the father’s consent. Courts have allowed it because children born out of wedlock are in the sole custody, care, and control of the mother.
In April, 2017, the Arizona Court of Appeals changed that. A father of a child born out of wedlock had established paternity by signing an acknowledgment of paternity with the mother and filing it with the Department of Economic Services. He and the mother did not previously seek a court order regarding the child. The mother then moved with the baby to Wisconsin without seeking a court order and without the father’s consent.
The trial court ruled, and the Court of Appeals affirmed, that the father had established his paternity by signing and filing the acknowledgment of paternity with the mother. Although the child was in the sole care and custody of the mother, the mother did not have the right to deny access to the child to the father because he had established paternity. Here is the part that changes the way Arizona courts approach this issue: the court ruled that the mother wrongfully denied access to the child by moving the child out of state without first seeking a court order and without the father’s consent. Therefore, the mother had to bring the child back to Arizona or face legal consequences.
For years, many fathers faced this situation having thought that the mother of their child could not just move their children to another state. By the time they found out the truth, it was often too late. Now, the Court of Appeals has taken the step of correctly holding that the mother of a child born out of wedlock whose paternity has been legally established cannot legally move the child to another state just because she is the mother.
The important distinction is that the parents of the child in this case had legally established paternity of the child. Had the parents not established the father’s paternity of the child, the mother could have legally moved the child out of Arizona without a court order or the father’s consent. In that case it would have been possible for the judge to order the mother to return the child to Arizona if the judge found that a return to Arizona was in the child’s best interests because Arizona courts would still have jurisdiction over the child. However, it would not have been strictly required to order the mother to return the child to Arizona and the mother would not have been breaking the law.
The lesson from this case is that father must establish paternity without delay. The child in this case was only two months old. Had the father not established his paternity of the child, this case may have gone a very different way. Besides establishing paternity (which parties can only do with a court order or by signing and filing an acknowledgment of paternity), the parents should seek an order for legal decision making, parenting time, and child support, rather than having the constant conflict that not having an order causes. There are plenty of other reasons to seek orders, but they are a subject for another blog post. If mothers and fathers need help with these issues, my firm offers a consultation at a discounted rate. Thanks for reading!
You can read the entire Court of Appeals decision here:http://www.leagle.com/decision/In%20AZCO%2020170413015/GUTIERREZ%20v.%20FOX
