questions & answers

Question: I have a 10 month old son, I was not married to the father, he is on the birthcertificate, we have lived together not as a couple but raising him since his birth, I want to move to another state to live with a family member to start my life over, I have received mixed legal advise on this, there are NO documents in place determining custody etc,Do I have custody since I am his mother like other states and can I leave without any legal consequences?

Answer:

The answer provided is for your information, it is not legal advice. For legal advice on the specifics of your situation, you should contact an attorney. See the Where to Find an Attorney article on this website.

Under A.R.S. § 13-1302(B), the custodial interference (criminal) statute, the mother is considered to be the legal custodian of a child born out of wedlock until some alternative custody decree is entered by the family law judge.

Also, A.R.S. § 25-803(D) provides that even when paternity is established, the parent with whom the child has resided for the majority of the preceding six months shall exercise legal custody until further order of the court. The notice requirement in Arizona's relocation statute does not apply unless both parents are entitled to custody or parenting time due to a court order or by written agreement. See A.R.S. § 25-408(B).

So according to the information you have given (i.e. no written agreement and no court order currently in existence), it would appear that you are not obligated to give written notice of your intention to relocate to another state. Apart from saying that you want to "start your life over," you do not explain what has gone wrong with your current relationship. So it is unclear whether mere personal preference has guided your decision, or something more serious has occurred. But suffice it to say that, by taking off with your child against the wishes of the father, you run the risk that he will file an AZ custody petition within six months of your departure. You should also remember that the fact that you withheld the child from his father could be used as evidence against you during the final custody determination. See A.R.S. § 25-403(A)(6).