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Out of Wedlock Children and Family Court

By: Woodnick Law, PLLC


The number of children being born out of wedlock is starting become fairly common among many parts of the world, especially in America. Married couples who have children and later end their relationship know that they have to get a court document to officially enter into a divorce and determine legal decision making, parenting time and child support matters. However, this is not so obvious, or common, for never married couples.  But, as rates skyrocket, it is important for those never married couples to realize that they should be thinking about and entering into legal orders regarding the rights and responsibilities for their children.

If the parties were never married, they may not necessarily know each other as well; if they never lived together, their expectations and beliefs on child rearing may be very different.  This is not to say that married couples may not also have these issues, but the concept that a never married couple must jointly raise a child for years to come is potentially a different type of scenario and may be even more reason why the parties should discuss and or get a court order in place to help define their co-parenting relationship. Getting a court order would assist in the process and will possibly make things easier for the parents and the child.

So, how do unmarried couples establish their rights relative to their children?

Paternity – The first step is to establish paternity. This can be done a number of ways according to AZ law.  Without establishing paternity, however, AZ law presumes that legal custody of the child is with the mother.  After paternity is established, however, the father becomes entitled to request specific court-ordered rights to their child.

Legal Decision Making – Once paternity is established, AZ presumptions regarding legal decision making changes.  Specifically, the law presumes that the parent with whom the child has resided for the greater part of the last six months has legal decision making.  This, however, is only in the absence of a court order.  If paternity is established, it is wise for the parents to specifically determine the legal decision making rights to the children.  This can be done via a petition to establish.  Depending on the circumstances of the case, the court can grant joint legal decision making or sole legal decision making to one parent.

Parenting Time – Like legal decision making, once paternity is established either parent may petition the court to order a specific parenting time plan which will outline the exact schedule for the child with each parent, including vacations and holidays.

Child Support – A unmarried parent has no legal obligation to pay child support to the primary parent until an order of paternity is entered. However, once paternity is established, a parent, or even the State in some instances, may initiate a child support establishment.  Child support includes a determination of what amount of monthly support should be paid to the primary parent of the child, but can also include a calculation of retroactive child support for the periods of time when the parties were separated, and may even include reimbursement of certain medical costs (including birthing costs).

All of this may seem daunting to never been married couples.  However, it doesn’t have to be that way. The parents can come to agreements on all of the above and enter their agreements with the court for entry of a court order.  The presence of a court order is important as it clearly defines each parent’s rights and responsibilities for the future.

In ideal world there would be more education and/or resources available to help unmarried couples establish these important issues for the children.  But the tools are there already – you just need an experienced family law attorney who can help navigate these issues.



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