Which Parent Has Legal Custody When a Child is Born Out of Wedlock?

If a child is born to married parents, it is assumed that the husband is the father of the child. The nuclear family will live together, unless and until the parents decide to separate or divorce. If the couple splits up, then a decision must be made on who should have custody of the child and how parenting time should be shared.

When a child is born to unmarried parents, however, it becomes more difficult to determine who the father is and what rights the father has. Under Arizona law, a mother has legal custody when a child is born out of wedlock. However, this does not mean that a father has no rights to his kids. Fathers can assert their claim and insist they have time to see the kids. In some cases, fathers can even petition for primary or sole custody after a child is born.

Singer Pistiner, P.C. is a Scottsdale family law firm that has extensive experience providing assistance to parents when custody disputes arise. Our attorneys can help both married and unmarried parents to assert their right to their kids and to protect their relationships with their children. Give us a call today to schedule a consultation and learn more about how we can assist you.

Which Parent Has Legal Custody When a Child is Born Out of Wedlock?

Arizona Revised Statute Section 13-302 addresses situations when a child is born out of wedlock.  According to this code section: “If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody or access is determined by a court.”

It makes sense for a mother to be granted legal custody when a child is born out of wedlock because there is generally no question about who the mother of a baby is. When the mother gives birth to the child, the mother’s name goes on the birth certificate and it is very clear that she is the natural biological mother to the newborn.  There may be questions, however, regarding who the father of the child is.

If you are the father of a baby that is born out of wedlock, you should take affirmative legal steps to make sure that you can establish a claim on the child.  If your significant other acknowledges that you are the father and puts your name on the birth certificate, this can make the process of identifying yourself as the legal father much simpler. If the mother of the child denies you are the father, however, or if the mother is uncertain about whether you are the father or not, you may need to ask for a DNA test. You can request a DNA test from the mother and she may cooperate, or you can petition the court to require a test if the mother is unwilling.

After paternity has been established and you have a legal claim to the child, you can petition for parenting time or shared legal custody. You and the mother can work together to create a parenting agreement outside of court for how time should be shared, which is an ideal situation. If you are unable to agree, you can get shared or partial custody, visitation rights or even full custody by showing the court it is in the best interests of the child.

A Scottsdale divorce lawyer at Singer Pistiner, P.C. can help. Give us a call today to learn more.


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