Father’s Rights In Divorce

In an ideal world, every marriage would last forever and children would grow up in a healthy, happy two-parent home. Unfortunately, not all marriages last. When parents divorce, they must share their children with the other parent. For fathers, this is often a serious concern. Many people believe that mothers should, and do, have custody of their children and that fathers should have less time with their children. The state of Arizona does not subscribe to this belief, however. Father’s rights in divorce are much more significant than you might believe, but you need to know what they are and be prepared to fight for and protect them. At Sullivan Shick, our experienced divorce attorneys are prepared to review your case and determine whether we are able to assist you in asserting your rights as a father. Call (480)719-2558 to schedule an appointment and learn more about your legal options.

What Is the Tender Years Doctrine?

The tender years doctrine is a historically prevalent legal principle that presumes the child’s best interests are met by being in their mother’s care until they are around age seven. The tender age doctrine supports the idea that mothers are more capable of nurturing and caring for children and that fathers are only capable of providing financial and material needs. The doctrine was challenged on the grounds that it violates the United States Constitution’s 14th Amendment’sequal protection clause, which indicates that states cannot make or enforce laws that would deny any person equal protection of the laws.

While most states replaced the tender years doctrine in the 1970s with the gender-neutral best interests of the child standard, in many places, the practice is still in existence. Maternal preference is still heavily favored in some lower-level court systems, although proving it is intentional is difficult. Arizona strives to ensure gender neutrality and a fair chance for each parent to prove their case as a parent.

What Are the Father’s Rights in Divorce?

In Arizona, parents have equal parental rights when the parents are married. Therefore, in a divorce, they are viewed to have equal parental rights unless one parent can provide evidence of why the other parent should not have equal rights. A father’s rights in divorce are the same as the mother’s. Unmarried fathers are also provided these same rights once paternity is established.

Legal Decision-Making Authority

Arizona fathers have the right to seek joint or sole legal decision-making custody of their children. Decision-making custody is the right to make important, non-emergency decisions regarding the children’s health, education, religion, and other major decisions. What is important to note with this and all other rights, is that it is the right to seek, not the right to have. This means fathers have the right to seek decision-making authority, but they are not automatically granted the right to make the decisions. In most cases, the court will order joint legal decision-making custody unless provided with a clear reason not to do so.

Parenting Time

Fathers have the right to seek parenting time whether it is majority, equal, or less time than the other parent. Fathers have the right to parenting time even if the other parent has sole legal decision-making custody. Fathers may also ask the court for sanctions if the other parent obstructs his time with the children. In that event, fathers should keep clear, concise notes regarding how and when the other parent has obstructed their time as evidence.

In addition to seeking parenting time, if fathers are concerned about their children’s safety with the other parent, they can request custody and parenting time for the other parent be under supervision in order to protect the children. This request may be due to child abuse or neglect, the other parent’s drug or alcohol addiction, or other circumstances that the parent believes compromise the child’s safety or well-being.

Child Custody Factors

One of a father’s rights in an Arizona divorce is the right to provide evidence for why the custody he seeks is in the best interests of the child. This evidence may include proof of his relationship with the child currently, in the past, and what he hopes it will be in the future. Additional evidence may be his physical or mental health, ability to provide for the child, or involvement with others in the child’s life, such as teachers, doctors, or babysitters.

Parenting Plan Rights

Parenting plans can be the result of a court order because the parents cannot agree, an agreement between the two parents, or a plan proposed by one of the parents and accepted by the court. Fathers have the right to propose their own parenting plan if they are unable to reach an agreement with the child’s other parent. The right to propose a parenting plan does not guarantee the plan will be accepted, but it does mean that it will be considered equally with any other parenting plan options.

Child Support

An Arizona father’s rights in divorce include the right to pay, or receive, child support. When seeking information about child support, it is often written from the perspective that the father will pay child support. However, A.R.S. §25-501 states that every person has a duty to provide all reasonable support for their adopted or naturally unemancipated minor children. This means either parent, regardless of gender, may be required to pay child support. If a father has primary custody of his children, he has the right to seek child support from the other parent.

Right to Veto Adoption

In Arizona, as in many other states, mothers cannot give their children up for adoption without the father’s consent. This applies to unmarried and married parents. If a father learns that his child’s other parent is seeking to place their child for adoption, he can object to such adoption and seek custody of his child. However, he cannot legally seek to prevent a pregnant woman from seeking an abortion, should she choose to do so, even if he is willing to take custody of the unborn child after birth.

Relocation of the Children

When parents have a court-approved written agreement or a court order that grants both parents joint legal decision-making and parenting time, neither parent can relocate the children without written notice to the other parent if they are relocating outside of Arizona or more than 100 miles in Arizona. If a father objects to the other parent relocating with his children, the parents must wait for a judge to decide whether the parent may relocate with the children or not.

In cases where the other parent has sole legal decision-making custody or has joint decision-making custody and primary residence of a child or joint legal decision-making custody and substantially equal parenting time, A.R.S. §25-408 provides that there are specific circumstances in which they can temporarily relocate with the child.

What Is the Best Interests of the Child?

So much is written about the best interests of the child when it comes to divorce and determining custody and other issues related to the children. What does best interests actually mean? Children thrive best when their parents are able to cooperate and communicate amicably and openly. However, not all divorced couples are able to do that.

When the court considers the best interests of the child, it begins with a presumption that shared legal and physical custody is in the child’s best interests. From there, the court considers many factors in deciding whether to continue with that presumption or to give one parent or the other sole legal decision-making custody or primary physical custody. According to A.R.S. §25-403, some of the factors that the court will consider include:

• The relationship with each parent in the past and present as well as how it may be in the future
• The child’s wishes if the child is mature and old enough to express those wishes
• The relationships with siblings, half-siblings, and step-siblings
• Special needs children and how each parent can meet those needs
• Connections to school, the community, and extended family
• The physical and mental health of each parent
• Each parent’s willingness to support and encourage the child’s relationship and continued close contact with the other parent
• Any allegations that have been made regarding child neglect/abuse, or exposure to domestic violence
• Each parent’s ability to care for the child
• Each parent’s cultural and religious practices

How Can Fathers Fight for and Protect Their Rights?

A father’s rights in divorce exist, but they require the father to fight for and protect those rights. If he does not speak up and advocate for himself, with or without the help of an attorney, his rights may not be considered as fully as they should be. However, there are several things fathers can do to ensure their rights are considered.

Gather and Present Evidence

The father’s right to seek legal decision-making custody and physical custody requires evidence if he wishes to deviate from the presumption of joint custody. He will need to prove that it is in the child’s best interests to live with him more of the time or to grant him sole decision-making authority. 

Evidence that may help strengthen his case includes medical or school records, family photos, proof of his relationship with his children, his ability to provide for the child, his mental capacity, and evidence of unfounded claims by the other parent. There may be other evidence that a skilled divorce lawyer may recommend he gather.

Consider Legal Representation

There is no legal requirement that any individual have a lawyer to represent them in a divorce or when fighting for custody of their children. However, individuals may still want to consider seeking legal representation as it may offer them several benefits over representing themselves. An attorney may be able to assist with completing and filing court paperwork, gathering evidence, and drafting other legal documents related to the case. They can also advocate for the father in court, using legal strategies to overcome any prejudice or bias against fathers. They can also assist with negotiating a parenting plan or other aspects of divorce. If you would like to learn more about how being represented by a lawyer may be beneficial to a father’s rights in divorce, Sullivan Shick may be able to expand on this topic during an in-person consultation.

Stay Current on Child Support Payments

When a father is fighting for custody as part of a divorce or in an attempt to change the custody agreement later, being current on any child support payments he has been ordered to make is crucial to his case. In addition to showing respect for the court’s orders, timely and consistent child support payments show his concern for ensuring his children are taken care of. These payments also show his ability to provide for his children if he is granted custody.

If child support has not been officially ordered by the court, fathers can still help their case by making child support payments to the other parent. The
Arizona Courts provide a child support calculator that allows parents to get an estimate of what child support may be ordered by the court. Fathers can use this estimate to make good faith child support payments to the other parent while waiting for an official court order. However, it is strongly recommended that fathers who make these types of child support payments get a signed receipt from the other parent that stipulates the date of each payment, amount of each payment, and that each payment is a child support payment, rather than a gift or payment for other purposes, such as payments toward loans, mortgages, or other shared bills. This can help the father be credited by the court for these payments.

Make Sure Home and Finances Are Organized

When a father is seeking more parenting time with his children, he should make sure that his home and finances are prepared to reflect his ability to provide for the children. His home should be large enough to allow the children their own space, and he should ensure that there is a space prepared for the children. This may mean purchasing more furniture, toys, or other supplies that children need.

Fathers should also make sure their finances are well-organized and reflect his ability to provide for the children financially. While he may be entitled to child support if he is given more time with the children, he should still be able to show that his finances are enough to provide.

Be a Present and Active Parent

While a father’s rights in divorce exist regardless of his relationship with his children, he will have a better chance of persuading a court to grant him more time with his children or legal decision-making custody if he is a present, active, and involved parent. He can prove this by attending medical appointments and school events such as plays, recitals, parent-teacher conferences, open houses, and sporting events or other extra-curricular activities. He can also prove this by being able to provide details about his children, such as who their doctors are, the names of teachers, allergies and medical conditions, food preferences, favorite games, books, toys, or clothes.

Keep Detailed Records

When trying to win a custody case, documentation can be crucial. For fathers, this can include making sure child support payments are made via the Arizona Child Support Portal so there is documentation of each payment. However, it should also include family photos that show the father spending time in various situations with his children to show the close, connected relationship between them. Additional records may include financial records that show an ability to provide financially for the children, medical or school records that show the father’s involvement, and other documentation that shows his involvement in the children’s lives.

Forge and/or Strengthen Connections With Child’s Caregivers

Fathers fighting for custody should ensure they have strong connections with the child’s caregivers. Some caregivers may change as a result of the divorce. If that has happened, fathers should take some extra time to meet new caregivers and begin forging connections with them to prove their commitment to remaining involved in their child’s life. Fathers should also continue to strengthen existing connections with caregivers who have not changed.

Depending on the circumstances, these caregivers could potentially be called as witnesses to testify about the relationships of each parent with the children. By continuing and strengthening existing connections and forging new ones with new caregivers, fathers can increase the chances that these individuals will have positive things to say about them if asked.

Contact an Arizona Divorce Attorney to Learn More About Your Rights

Divorce and custody issues are rarely pleasant. However, a father’s rights in divorce must be fought for and protected so he can continue to have a healthy, close connection with his children. Whether you are contemplating divorce, in the middle of a divorce, or want to make changes to a custody order after a divorce is final, a skilled Arizona divorce attorney may be able to assist you by answering questions, explaining or completing legal documents, collecting evidence, or representing you in court. Call Sullivan Shick at (480)719-2558 to schedule an appointment and learn more about asserting your rights as a father.