When married parents divorce in Arizona, neither parent has superior rights to their children until the court enters orders for custody (now “legal decision-making”) and parenting time. With children born out of wedlock, however, the mother has custody automatically under Arizona law until the court orders otherwise. A.R.S. Section 13-1302 B. Senate Bill 1202, if passed and signed into law, would put the father of a child born out of wedlock on equal ground with the child’s mother if the father’s name is on the birth certificate or if both parents have acknowledged paternity.
Arizona’s custodial interference statute currently reads in pertinent part as follows: “If a child is born out of wedlock, the mother is the legal custodian of the child for purposes of this section until paternity is established and custody or access is determined by a court.” A.R.S. Section 13-1302 B. The amendment proposed by SB 1202 would add the following language: “If the father has acknowledged paternity pursuant to Section 25-812 or the father’s name is stated on the birth certificate pursuant to section 36-334, it is presumed that the father has the same rights regarding custody as the child’s mother for purposes of this section.”
Under current law, before custody and parenting time orders are entered by the court, the father of a child born out of wedlock who has the child in his physical care and control can be arrested and charged with custodial interference under A.R.S. Section 13-1302 if he refuses to turn the child over to the mother. The mother, on the other hand, can keep the child from the father until a court awards the father specific parenting time rights. The mother is within her rights to retain the child from the father because, under current law, the mother is the presumed custodian of the child until the court orders otherwise. A.R.S. Section 13-1302 B.
The primary effect of the new law would be to prevent a father who has signed a proper affidavit of acknowledgement of paternity under A.R.S. Section 25-812 or who is listed on his child’s birth certificate from being arrested for custodial interference for keeping the child in his care.
It is important to understand what SB 1202 would not do. This bill, if passed, would NOT create a presumption of custody in favor of the father. It would simply remove the presumption in favor of the mother in situations where the father’s name appears on the birth certificate or where there is a proper affidavit of acknowledgement of paternity. The statute would NOT protect a father who has neither been named on a birth certificate nor properly acknowledged as the father by both parents as required under the paternity statutes. See A.R.S. Section 25-812A.1 (requires a signed affidavit of both parents acknowledging the father’s paternity).
Under the new law, the time between when a dispute arises between the parents and when court orders are entered could be a period of considerable uncertainty and conflict between the parents. For example, if the mother has the child in her care but has to go to work and leave the child with a child care provider, the father could go pick the child up from the child care provider. The father could then keep the child in his care without being arrested for custodial interference until the father has to leave the child with a third party. As soon as the father leaves the child with a third party, however, the mother could again pick up the child from the third party.
This back-and-forth situation could become increasingly chaotic and volatile for the parents, and most importantly, for the child, an innocent victim caught in the middle of the parents’ struggle for control. It could easily take up to two months or more to secure even a temporary court order resolving custody and parenting time issues. During this time, the parents’ figurative “tug-of-war” over the child could cause the child significant distress and emotional harm. Obviously, it is in the child’s best interests for the parents to cooperate with each other and to agree informally to a schedule allowing the child to spend significant time with both parents until the court is able to enter specific parenting time orders.
While SB 1202 may open the door for more parental conflict and uncertainty prior to the court’s entry of parenting time orders, SB 1202 is another necessary step toward establishing equality between mothers and fathers. It is consistent with other recently-enacted Arizona custody and parenting time statutes, and I believe some version of this bill will pass the legislature and be signed into law this legislative session.
Copyright © 2013 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.