By Jessica M. Cotter, Esq.
The first legal issue that must be determined is Paternity, or who is the biological father of the child. An action to establish Paternity may be filed with the court by several different interested individuals or entities and they are as follows:
• Best friend of a child or children born out of wedlock
• The state Attorney General’s office
• An adult child
• A public welfare official in the county where the child resides.
Once the Paternity issue has been bought to the attention of the court, and if no one has signed any documents indicating that they are the father of the child, or if the alleged father does not agree that it is his child a DNA test can be performed. If the results of the test indicate a 95% probability that the individual tested is the father and the report is not contested then the court will order that the individual is the biological father of the child.
An individual will also be presumed to be the biological father if any one of the following conditions is met:
• Mother and father were married 10 months prior to the child’s birth
• The DNA test indicates a 95% probability that he is the father
• Father signs the birth certificate
• A notarized statement by a witness who has personal knowledge of the child’s parents and which is also signed by both parents and witnessed.
Once the court has determined who the biological father there is no automatic determination of who has legal decision making authority over the child and such authority does not automatically default to the mother. The person who has legal decision making authority over the child is determined by which parent the child has primarily resided with during the six months prior to the court making a determination of the paternity, unless there is a court order that states otherwise.
Realistically speaking, if there are no court orders in place, no law enforcement officer is likely to remove a child from one parent or another.
As you have already read there are several unique issues which arise when there is a child born out of wedlock. In coming posts we will discuss legal decision making authority, parenting time and child support.
Please set up a consultation with our office if you would like to discuss your case or consult with an experienced family law attorney in your area.
Resources A.R.S. 25-803 25-807 and 25-814
The Law firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th Ave. Suite F-168
Glendale, Arizona 85308