Commonly Asked Questions in Paternity Cases
By Trent Wilcox, Esq.
Q: When can a paternity case be commenced?
A: Arizona Revised Statute §25-804 allows either parent to institute paternity proceedings during the pregnancy. Proceedings to establish child support must be started before the child’s 18th birthday, except possibly in the case of a physically or mentally disabled child. Interestingly, an adult may even bring an action to establish the adult’s biological parent. A.R.S. §25-803(B).
Q: The father’s name appears on the birth certificate. Does he have to do
anything else to establish paternity?
A: Yes. The birth certificate is evidence of paternity but, in the courts’ eyes, is little more. In order to solidify a father’s rights and obligations, an Order of Paternity must be sought. The Order is issued by the proper court to officially declare the father’s identity. Only after paternity is officially ordered can a court also enter permanent child support, custody and visitation orders.
Q: Why is the State of Arizona involved in my case?
A: The State of Arizona becomes involved in paternity cases in two situations: First, when paternity must be established and, second, when a party requests assistance in enforcing a child support order. The State does not represent either party, although it may seem that way sometimes because the State’s interests usually parallel the custodial parent’s. The State is happy to establish paternity because a paternity order is accompanied by a child support order in almost all cases, meaning that the likelihood of a parent needing state assistance to support the child is lessened. The State also files these cases to seek reimbursement from non-custodial parents for state assistance previously provided. If the State caused paternity establishment via a IV-D action, visitation/parental access will not normally be determined at the same time, however, either parent may request that custody and specific parenting time be established as part of the proceeding. A.R.S. §25-803(C).
Q: So what does IV-D mean?
A: The Social Security Act, Title IV, Part D, is the federal law that works with the states to recoup money paid on behalf of children. So, when a parent receives public assistance, it is likely that the State will try to collect the same amounts from the other parent. This process can apply to both married and unmarried parents.
Q: What are a father’s rights in a paternity case?
A: Believe it or not, a father has very nearly the same rights as a mother with one notable exception, that until paternity is established and a custody order entered, a mother is presumed to be the sole custodian of a child. This is because someone has to be legally able to make educational, medical and other important decisions on behalf of the child. Until the court makes it official, the only parent that can be verified is often the mother. However, if a father promptly acts to secure a paternity order, establishes a solid relationship with and supports his child, he enjoys the same chance at primary custody, substantial access and receiving child support as a mother. Studies show that many men assume they have no chance at primary custody so they do not try for that designation, even when they may be the better parent, because they assume that moms always win. The studies also show men win custody cases as much as moms. Custody, parenting time and child support for men in paternity cases are based on the same statutes and standards used in divorce actions.
Q: My ex-significant other and I purchased property together. Will the court divide
that property as part of the paternity action?
A: No. Instead, you may need to file a civil case to seek that court’s assistance.
Q: Paternity is already established by the court. What must I do to get a visitation order?
A: File a petition in the court asking for entry of a parenting time schedule. Many parents ask for parenting time, a different custody designation and the proper child support amount all at the same time since the three can be interrelated.
Q: What happens when a child is born to a married woman but the biological
father is not the married woman’s spouse?
A: Pursuant to A.R.S. §25-814, there is a presumption that the husband is the father if he and the mother were married at any time within the 10 months preceding the birth. However, this presumption can be con-tested and overturned with the proper evidence.
Q: What should the parties do if one or both are uncertain about the father’s identity?
A: The parties should seek DNA testing to determine the father or at least to exclude one or more potential fathers. If the parties are not cooperating, it may be necessary to seek the court’s assistance.
Q: In a paternity case where the child was born several years ago, can the court
backdate the child support to a time prior to commencement of the proceedings?
A: Yes. The amount of time considered in a back child sup-port order depends on each case’s particular circumstances although 3 years is presumptively the correct amount of time. Under A.R.S. §25-809(B), the court can examine the reasons for the delay in establishing child support and apply its findings to the backdated order. If the court finds that one party was ill-motivated, difficult or hiding out, the court can make the child support order retroactive to the birth of the child even if more than 3 years.
Brochure #2 in the The Law Office of Carrie M. Wilcox “Arizona Family Law Series.” Please call 602-44-4690 for your free brochures on other topics, including:
#1 What You Should Know About Divorce in Arizona
#3 Visitation and Custody Rights of Non-Parents in Arizona
#4 What Every Arizona Parent Should Know about Custody and Visitation
#5 What You Should Know About Divorce in Arizona
Disclaimer: The Law Office of Carrie M. Wilcox and its principals, agents or representatives, make no guarantees or representations as to the accuracy or currency of any information herein contained. Providing this brochure does not establish an attorney-client relationship. To create such relationship, both the attorney and potential client must sign a written fee agreement. This information is meant only as general information, may not apply to your case specifically and is not meant to be relied upon for purposes of taking legal action. You should contact an attorney in person for further and specific information. Carrie M. Wilcox is licensed in Arizona only.