Child Custody and Parents that Are Not Married

Determining child custody can be a difficult task to navigate, especially when parents disagree. The best interests of the children should always be at the forefront, but the emotions associated with the end of a relationship can cloud even the best judgment. Understanding the legal proceedings and navigating family law court can feel overwhelming, even under the best of circumstances.

In most cases, people assume that child custody agreements are only necessary when a marriage ends, but this is not always the case. Unmarried couples are often put into situations where they must create a child custody agreement as well.

Unmarried Parents’ Rights in Arizona

In many cases, unmarried parents can agree to share parenting responsibilities, including decision-making and parenting time. However, some parents experience difficulty coming to an agreement once the relationship ends. Others may simply want to establish a legal parenting plan to ensure their agreement is enforceable in the future. Thus, custody agreements between unmarried parents are not uncommon and present some unique legal questions.

The most important question to consider in these situations is this: what happens to the children when parents are not legally married? In many situations, there must be proof of parenthood provided in order for custody to be granted. Here is a brief overview of what the state of Arizona requires regarding child custody agreements for parents who are not married.

The primary aim of any child custody arrangement in Arizona, regardless of the marital status of the parents, is ensuring that the best interests of the children are considered. Whether parents are married can be important for custody purposes, but generally, all Arizona parents have the same rights whether they are married or not. However, the details of who receives initial custody over the children can be impacted if their parents are not legally married. The two main aspects that must be in place before parenting time can be finalized are legal parenthood and paternity.

Unmarried Mother’s Rights in Arizona

Establishing custody and parenting time is often much simpler for the mother. Unmarried mothers in Arizona are automatically granted legal decision-making rights and physical custody because of their biological connection with the child.
The power to make all legal decisions means that the mother is able to decide what happens to their child or children. This could include placing the child for adoption, limiting or eliminating visitation with the father, and making any and all necessary medical decisions. This power is firmly in place until paternity is established and the courts mandate a new decision.

Unmarried Father’s Rights in Arizona

Unmarried fathers in Arizona have a much more difficult process to navigate in order to obtain custody of their child or children. Since legal guardianship is automatically granted to the biological mother, the father must legally establish his custodial duties to be granted custody by the courts. The first step in this process is establishing paternity.

There are several accepted ways for paternity to be established in Arizona.

Stipulating

In the case of establishing paternity, stipulating occurs when both parties agree on paternity. Once both parties have formally agreed on paternity, they can move forward with a written order to establish the custody agreement. In order for a stipulation to be considered official, it must be a written statement that is witnessed and notarized by the courts. If evidence is presented that contests this paternity, a judge may overturn the ruling.

Petition to Establish Paternity

If one or both parties do not agree to stipulate paternity, then one party must submit a petition to establish paternity. This means that another method must be utilized to determine whether or not the man in question is the biological father of the child. There are two ways that this can be accomplished.

Birth Certificate

The signature of the biological father should be on the birth certificate. This is typically done at the hospital or at the time of birth. This establishes paternity so long as at least six months have passed since the birth certificate was signed.

Paternity Test

In the event that the birth certificate cannot be used to establish paternity, the courts may request a paternity test. This is typically done through a DNA test. In order for this test to establish paternity, the test must produce a 95% or higher probability that the man in question is the biological father.

Once paternity has been established, the parents are able to move forward and establish their custody agreement. Depending on the circumstances, the involved parties will either pursue a full or joint custody agreement.

THINGS TO CONSIDER WHILE CREATING A PARENTING PLAN

When it comes to creating a parenting plan that works for both parents and the child, it is essential to establish a schedule that reflects the best interests of the child involved. The schedule should lay out where the child will reside, when visitation or any other child movements should take place, and how the children will be transported. This is typically the most familiar component of any parenting plan.

In addition to the parenting schedule and where the child will live, Arizona state law requires that parenting plans cover several decisions regarding how the child will be raised, as well as how communication should occur between parents.

Medical and Dental Care

It is important that both parents specify who can make medical decisions for the child. A parenting plan can specify that one parent in particular will make decisions, or that both parents must agree. This is important to put in place in case there is a medical emergency. It should also be noted that if a child support order is in place, that will typically outline how the health insurance costs of the child will be split between the parents.

Religious Participation

Arizona state law requires that parenting plans address the child’s religious participation. If there is no anticipated religious participation, that should be clearly indicated in the parenting plan. If one or both parents expect the child to participate in religious activities, the extent and circumstances should be explained in the plan. The plan should also include whether the parents will take the child to a place of worship, and it should consider what would happen if the child decides to pursue his or her own religious education.

Education and Other Activities

The parenting plan should outline how parents will participate in their child’s education and other activities. It should discuss how the parents will make decisions about the child’s education and how they will coordinate attending parent-teacher conferences and other extracurricular activities. All school and extracurricular decisions should be considered when creating the plan.

Legal Decision Making

Ultimately, the plan should indicate who will have legal decision-making authority for the child regarding all other decisions, including personal care. Decision-making can fall under a joint legal decision-making arrangement, or the plan can stipulate that one parent has sole decision-making authority on behalf of the child. The Arizona Family Court generally recommends that parents should consider giving final decision-making authority to an individual parent for unforeseen issues. It is generally a good idea for parents to discuss what should happen in an emergency situation.

Joint Legal Decision Making and Parenting Time in Arizona

The courts will typically determine that it is in the best interest of the child to have time with both parents and will establish a joint decision-making agreement. This means that in circumstances involving unmarried parents, both parties will work together to make any and all decisions regarding the child.

Another aspect of a joint custody arrangement is parenting time, which determines where the child or children will live and how often they will see each parent. If the agreement is equal parenting time, then each parent will have the same amount of time with the child or children.

In some cases, the courts will establish a sole residence for the child or children. This means that one parent will be the primary caregiver, and the other parent will have scheduled visitation with the child or children. This schedule is set by the courts and, as always, strives to maintain the best interest of the child.

Establishing Legal Decision Making and Parenting Time in Arizona

There are certain things that must be established when parents agree to joint legal decision-making and parenting time in Arizona. The state prefers a co-parenting model over a traditional child custody model. This means that ideally, the parents will work together to determine a plan to best meet the needs of their child or children. In most cases, this involves the child spending time with both parents and the parents sharing decision-making rights.

In the state of Arizona this is accomplished using a parenting plan. This plan sets out a clearly defined schedule and custody arrangement that is used to ensure that the parents and children receive the time and support that they need.

This process can be daunting, but the parenting plan is a great tool to assist both parents and children with any adjustment. In the process of establishing a parenting plan, there are several major factors for both parents and the court to consider.

Some of these factors include:

The age of the child or children in question
The maturity level(s) of the child or children involved
The personalities of each family member
The established bonds and relationships between parents and child or children
The flexibility of family schedules
Any special needs of parents or children
The ability of the parents to communicate well
The cultural or religious practices of various family members

Arizona offers resources to help the involved parties develop a parenting plan that meets everyone’s needs. They offer sample calendars, important vocabulary for understanding the process, and relevant information for a variety of special circumstances. As with every aspect of decision-making and parenting time discussions, the best interests of the child should always be what drives the development of a parenting plan.

Once the plan has been completed, it is submitted to the courts, approved by a judge, and made into an established piece of the child custody orders. When the parenting plan is officially in place, it will be fully enforced by the court, and both parents must abide by it. If either parent does not follow the established parenting plan, they are subject to reprimand or punishment by the courts.

In some cases, despite the best efforts of both parents and the court, joint legal decision-making and parenting time plans are not possible. Under these circumstances, one parent can petition to be granted sole legal decision-making or parenting time rights.

Sole Legal Decision Making and Parenting Time in Arizona

In Arizona, once paternity has been established and a custody order is in place, there is no favor shown to one parent over the other. It is the assumption that the best course of action for the proper growth, health, and development of a child is to have regular time and contact with each of their parents.

If one parent believes that the other should not have decision-making or parenting time rights, they can petition the courts to be granted sole decision-making or parenting time rights. If a parent requests sole decision-making and parenting time, they must provide irrefutable proof that being involved with the other parent is not in the best interest of the child or children.

There are a few factors that can help the courts determine whether a parent should lose their decision-making or parenting time rights.

Physical Incapability—If one parent is unable to physically care for their child or children, then they may lose parenting time rights.
Substance Abuse—A parent may lose their decision-making or parenting time rights if they struggle with substance abuse. It must be clearly provable in court that said parent’s substance use issues are detrimental to the health, growth, or safety of a child.
Domestic Violence—If a parent has a history of domestic violence charges, they may lose their decision-making or parenting rights. Again, the other parent must prove in court that spending time with the abusive parent is detrimental to the child or children.
Neglect or Lack of Involvement—A parent who neglects their child’s needs or is not actively involved in the life of their child or children can potentially lose decision-making and parenting time rights.
Age(s) of Child—The age of the child or children involved in custody cases is also taken into account. For younger children, it may be in their best interest to grow up in a single household rather than moving between both parents. Older children may express their wishes regarding the parent they prefer to stay with.

In these circumstances, one parent may not be granted any decision making or parenting time rights. In the case of a parent requesting sole decision making or parenting time rights, it is common for a judge to request that an investigation be completed by Child and Family Support Services. The result of that investigation will help determine the outcome.

About Child and Family Support Services Investigations

An investigation from Child and Family Support Services involves a thorough information-gathering process and interviews with both parents. If any of the factors mentioned above are found to be true, then it is likely that the parent in question may lose decision-making or parenting time with the child. The court may also determine that supervised visitation is preferable to solo parenting time. The main goal of the investigation is to ensure that the child or children are safe.

It is important to note, however, that decision-making and parenting time rights are not always linked. There may be cases when a parent does not have equal parenting time rights but does have a say in the decision-making for their child or children. In the same way, some parents may not have decision-making rights but are granted some parenting time. Ultimately, the final arrangement will be determined by the court and focused on the best interest of the child or children involved in the case.

OTHER CONSIDERATIONS: INEFFECTIVE CO-PARENTING

Of course, loss of custody due to DCS investigation is not the only factor the court may consider when it comes to assigning parenting time and decision-making rights. Ineffective or inappropriate co-parenting is a sad reality that some parenting relationships experience. Often, if the parents have a bad history of conflict and resentment, it can bleed over into their parenting relationship with the child. This can hamper the ability of the parents to make schedule changes, communicate effectively, and collectively make major decisions. Ultimately, it is the child who suffers.

Signs of Ineffective Co-Parenting

There can be several forms of ineffective or inappropriate co-parenting:

Alienation

If one parent attempts to alienate the child from the other parent, it can be distressing to that parent. However, even more concerning is the damage it can do to the child. Alienation can not only damage the child’s relationship with the parent in question but also hamper the child’s development, destroy their self-esteem, and negatively affect their emotional health.

Lack of Communication

Good communication is key in any co-parenting relationship. Communication often requires a solid understanding of the other parent and a healthy level of respect between all parties. When communication breaks down between parents, it can lead to confusion, instability, and inconvenience for all. It can also lead to an inappropriate co-parenting relationship and can be emotionally harmful to the child.

Unclear Boundaries

Boundaries must be clearly set between parents for a healthy co-parenting relationship to be established. The effectiveness of the boundaries in place can often depend on the parents’ history and their willingness to cooperate regarding established plans and unexpected circumstances. Shaky boundaries regarding how the parents will interact can cause issues and affect the parenting relationship.

Custodial Interference

Any type of interference with the parenting plan or the custodial agreement by one parent is a sign of inappropriate behavior. A parent should never attempt to change or interfere with the parenting plan without the input of the other party. A rare exception exists in cases of domestic abuse or neglect.

Withholding Information

It is not in the best interest of the child if parents withhold critical child-related information from each other. Part of establishing a healthy co-parenting relationship is to collaborate whenever possible. If collaboration is not possible, transparency is essential.

Bad-Mouthing the Other Parent

Speaking badly about the other parent is a sign of an inappropriate relationship, especially if it is in front of the child. This can be harmful behavior that builds animosity and resentment within the relationship. It can also unfairly color the child’s perception of their parent.

Overreach

It is important that there are established rules between parents. If there is a joint custody agreement, it is essential that each parent respects the rights and rules of each parent’s house. Each parent has the right to discipline the child if the child is with them during that period. If there are ever issues regarding the other parent’s home parenting style, they should be addressed with respect and understanding.

Establishing Healthy Co-Parenting

One of the best ways to avoid an inappropriate co-parenting relationship is to create a parenting plan that works for both parents and the child. It is important to remember that the child’s needs should be the number one concern for both parents.

Engaging the help of a qualified and experienced child custody attorney who can help you create the parenting plan can also be beneficial. The right attorney can review your situation and provide feedback on how the parenting plan should be drafted. Once the plan is created, an attorney can help you ensure that your child’s other parent abides by the court-approved agreement.

Child Custody FAQS:

Who Has Custody in Unmarried Couples?

In Arizona, women who have a child outside of wedlock become the child’s sole parent, unless they choose to name the father on the child’s birth certificate, thus establishing paternity. Once paternity is established via a paternity test or voluntary affidavit, a custody agreement can be created. An experienced child custody attorney can help draft up a child custody agreement between parents.

What Happens If an Unmarried Couple Breaks Up After Having a Kid?

If an unmarried couple separates after having a child, the parents will likely share parenting responsibilities. Parenting responsibilities can include parenting time and decision-making for the child. It is typically up to the parents to decide on a parenting agreement, which must then be approved by the court if the parents wish it to become legally binding. If the court must step in to approve the agreement, it will always consider what is in the best interest of the child. If you find yourself in a situation like this, you should engage the help of an experienced child custody lawyer.

What Is Inappropriate Co-Parenting While in a Relationship?

What constitutes inappropriate co-parenting will largely depend on your unique principles, values, and goals. Each parenting relationship is different, but generally speaking, as long as the co-parenting relationship is supportive and conducive to the growth of the child, then it is appropriate. If there are situations that arise that take away from the child’s well-being, then that could be considered inappropriate behavior. Some typical examples of inappropriate co-parenting may include talking negatively about the other parent, pushing the child to choose sides, unclear boundaries, lack of communication, or not cooperating well with the other parent.

Who Has Custody of a Child If There Is No Court Order in Arizona?

If there is no court order in Arizona, both legal parents have a right to custody of the child. In most instances, when an unmarried couple with a child breaks up, they will develop a parenting plan for the child. The parenting plan outlines how the couple will cooperate and ensure that the child’s needs are met, including parenting time and legal decision-making. An experienced child custody attorney can help draft a parenting plan or custody agreement.

Who Has Sole Custody of a Child in Arizona?

In the state of Arizona, sole custody can be awarded to either parent. Initially, due to the biological connection that mothers have with their child, they are typically granted legal decision-making rights and physical custody until paternity is established. However, sole custody is generally determined by the parents, and it can be outlined in the parenting plan or the custody agreement. For a parenting plan to become legally binding, the Arizona Family Court must approve it and issue a court order.

How Is Child Custody Determined in Arizona?

A child custody agreement can be created by the parents, but it will be reviewed by a judge. Child custody in Arizona is determined by what’s in the best interest of the child. Each relationship and each child custody case is unique in its own way, but in every case, the child’s well-being will be the number one determining factor.

Legal Representation for Unmarried Parents in Arizona

Regardless of the circumstances involved, it can be difficult to navigate custody agreements when tensions and emotions may run high. Submitting the necessary paperwork, attending the correct court appearances, and understanding the proper legal proceedings can often feel overwhelming. Having trusted, experienced legal representation can provide you with peace of mind and make the process much easier. We’re here for you.

Book a free consultation to talk about your family law matter today!

*Editor’s Note: This article was originally published May 28, 2021 and has been revised April 8, 2024.

Jonathan Roeder

Jonathan Roeder, Founder/Director of Marketing of The Valley Law Group, is an Arizona native who has dedicated his life and career to the service of others. After graduating salutatorian of his high school class, Jonathan attended beautiful and prestigious Pepperdine University, where he majored in Political Science. During his tenure at Pepperdine University, his passion for helping others grew after securing a clinical position with a residential treatment center for juveniles with substance addictions. Post-graduation, Jonathan returned to Arizona and served as a residential manager for mentally and physically disabled homes.