Child Custody

questions & answers

Question: Does a mother have sole custody of a child if you have a child out of wedlock and there is no court order in place?

Answer:

Yes. Under  A.R.S. § 13-1302, "[I]f 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." This law is actually found within the Arizona criminal code (in the section pertaining to custodial interference), and has already survived constitutional challenge in the Arizona Court of Appeals. See State v. Bean, 851 P.2d 843 (Ariz. App. 1992).

The rule is based on the public policy that a man who has not taken any affirmative steps to acknowledge paternity, or request custody or parenting time rights, is not similarly situated to the mother or even a married man who bears the same responsibility for raising a child as his wife. In other words, if an unmarried man wants to enjoy the perks of custody or parenting time with his biological child, he must assume the responsibility of initiating legal proceedings that will cement that father-child relationship, and, just as importantly, allow the judge to provide for the financial support of the minor. You cannot have one without the other!