Historically, fathers have not been treated the same as mothers in custody disputes, but more recently, family attorneys in the Phoenix area have been able to assert more robust rights on behalf their clients who are fathers. It was long assumed by society and the courts that mothers were the most appropriate stewards of a child’s well-being because of the mother-child bond that begins at birth. As such, fathers were often seen as less critical to a child’s growth and development.
Society is changing and fathers continue to take more and more responsibility as primary caregivers for their children. There are many reasons for this. In the modern economy, both parents often have to work to support the family and mothers are taking on less traditional roles. In an increasing number of homes, fathers have become primary care givers, especially if they have been laid off from a job or, in some cases, have made the decision to be a stay-at-home-dad. The court’s legal presumptions have also been undergoing an evolution of sorts with regard to fatherly rights. Some of these rights include:
- A right to a determination of paternity
- Visitation rights
- Legal and/or physical custody rights
- Child support rights
- Adjustments or allowances on child support determinations
Just because many people presume a mother to be the best caretaker of children does not mean you don’t have rights. Hire an Arizona family attorney that will fight hard to make sure your rights and reputation are protected.
What if we don’t know who the father is?
The State of Arizona does not recognize a presumption of paternity if the father’s identity is in question and the parents were unmarried at the time of birth. If there is a question of paternity, it is probably in your best interest to have paternity determined in order to protect your legal rights and clarify whether or not you will be required to pay child support. This is especially true if you are seeking custody of the child or visitation rights.
Without a determination of paternity you are not automatically entitled to visit the child or have parenting time with the child. Similarly, if you have not been determined to be the father, you cannot be required to pay child support. You may voluntarily accept paternity of the child under A.R.S. 25-812, or you may seek a court ruling that acknowledges you are the biological father of the children.
In other cases, paternity is presumed based on the facts of the situation. Arizona Revised Statute 25-814 states that fatherhood may be presumed where any of the following are present:
- Genetic testing was done and there is at least 95% probability of paternity
- If, previous to the child’s birth and any time within the last 10 months, the man and woman were married
- The child was born within 10 months of a marriage ending
- The birth certificate of a child born out of wedlock was signed by the man and the woman
- Either parent has signed a document acknowledging paternity and it has been notarized
As the father, will I get equal parenting time?
As discussed above, modern legal theory holds that both the mother and the father should have equal time with the child, even if the child is very young. It was often presumed that only a mother could adequately care for an infant or toddler, but the law has been changing to give fathers equal time.
- What was previously referred to as joint or sole “custody” is now referred to as joint or sole “legal decision making”
- The courts will presume that both parents should have equal parenting time
- If one parent alleges that there should not be equal time, they will face a higher burden of proof.
- The court will consider the physical distance between where the parents live
- The court will consider any circumstances they may be hazardous to the child such as addiction, domestic violence, or mental health issues and develop an appropriate “parenting plan”
No two cases are the same, and even if there is a presumption of equal parenting time, you are not guaranteed equal time with your kids. Your family attorney should thoroughly vet any potential issues and help you devise a legal strategy that most closely matches your custody or visitation goals. The courts in Maricopa County work hard to ensure that each parent has equal parenting time but is up to you and your legal counsel to make sure the court is doing its job correctly.
What if the mother of my children is unfit to care for them?
Regardless of legal presumptions, mothers very often end up having more time with the children and more influence over them. Unfortunately, some mothers, like some fathers, end up having mental or behavioral health issues that compromise their ability to care for your children. If you believe your children are in an unsafe environment you have the right to speak up.
Alcoholism, drug abuse, mental illness, criminal activity, child abuse or neglect affects mothers and fathers alike. In some cases, despite our assumptions, mothers are truly not the best care givers for their children. If, the mother of your child has legitimate issues that make her unfit to care for your children you need to approach the situation with tact and caution. Courts take unfounded allegations very seriously and it could damage your case if accusations against the mother are false or overblown.
There is a very tough standard that allegations of unfitness must pass and the Court does not take such allegations lightly. Family law cases should not be about name calling or animosity. A qualified family attorney who understands the local courts in Phoenix and Scottsdale can help you build a solid case and avoid any pitfalls. Attorney Judd Nemiro knows that emotions run high in family cases, but you can rest assured that he understands the law and how it will be applied to your case. Call him today to discuss the facts of your case!