Friday, 03 May 2013 03:32

A Summary of Arizona's Paternity Statutes

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A paternity action establishes the paternity of a child born out of wedlock. It may also establish legal decision making (also known as custody), parenting time (visitation), child support, past child support, and the child’s name. A person filing a paternity action must do so in Arizona Superior Court. The fact that a parent, child, or both are not residents of Arizona does not bar the proceeding. The person filing the action may do so in the county of residence of the person filing, the respondent, or the child. The mother, father, guardian, conservator, "best friend," a county public welfare official or agency, or the State of Arizona may file a paternity action. The person filing the action may do so during the pregnancy of the mother or after the birth of the child, but for the purpose of establishing child support, must do so prior to the child’s 18 birthday.

A party starts a paternity action by filing a verified (i.e., sworn) petition alleging that a woman has given birth to a child or children born out of wedlock or is pregnant with a child conceived out of wedlock and that the respondent is the father. If the respondent does not file an answer or admits that he is the father in his answer, the court must immediately enter a judgment of paternity. The court must then proceed to any other issues, such as legal decision making, parenting time, and child support.

Upon the motion of either party or upon the court’s own motion, the court must order the parties and children to submit to genetic testing by a laboratory chosen by both the parties or appointed by the court. If the likelihood of paternity is 95% or greater, the court presumes that the alleged father is the father of the children. A party may overcome this presumption by clear and convincing evidence, which is a heightened standard of proof.

After the court establishes paternity during a child’s minority, the court must establish a past child support amount, subject to equitable defenses, such as that the child and mother lived with the father and the father supported the household. The court may also direct either party to pay the actual costs of the pregnancy, birthing, genetic testing, and related costs. The court must also establish a current child support amount pursuant to the same guidelines as for other child support cases. The court may modify child support and extend it past the past of majority under the same circumstances as for other child support cases. The court may also award attorney’s fees and costs. The court may also make the parents of a party that is a minor jointly liable for any judgments.

A child’s parents may also establish paternity by filing an affidavit known as an acknowledgment of paternity or an agreement to be bound by genetic testing (along with a copy of the genetic testing) with the Superior Court, the Department of Economic Security, or the Department of Health Services. Upon filing with the Superior Court, the clerk of the court issues an order of paternity which has the same force and effect as a judgment of the court. An acknowledgment of paternity filed with the Department of Economic Security or the Department of Health Services has the same effect as a judgment of the Superior Court.

The court presumes a man to be the father of a child if he was married to the mother at any time during the ten months immediately preceding the child’s birth, genetic testing affirms a 95% or greater probability of paternity, or a mother and father sign the birth certificate of a child born out of wedlock, or the mother and father properly execute an acknowledgment of paternity. An acknowledgment of paternity is only effective if the mother was not married to another man during the ten months immediately preceding the birth of the child. A party can overcome any of these presumptions with clear and convincing evidence. A judgment of paternity from another state has the same force and effect as an order of this state.

If you have further questions about paternity or need representation in a paternity case, Thomas A. Morton is waiting for your call.

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