Child Custody

questions & answers

Question: Who has legal custody if the parents never married?

Answer: Under A.R.S. § 13-1302, "[I]f a child is born out of wedlock, the mother is the legal custodian of the child for purposes of this section until paternity is established and custody or access is determined by a court." This law is actually found within the Arizona criminal code (in the section pertaining to custodial interference), and has already survived constitutional challenge in the Arizona Court of Appeals. See State v. Bean, 851 P.2d 843 (Ariz. App. 1992). Parents are free to make decisions about custody or parenting time on their own. When parents are unmarried and no order has been entered to establish parental rights, the biological father has no legal right to either custody or parenting time until paternity is established. He also has no legal obligation to pay child support to the mother until an order of paternity is entered. The rule is based on the public policy that a man who has not taken any affirmative steps to acknowledge paternity, or request custody or parenting time rights, is not similarly situated to the mother or even a married man who bears the same responsibility for raising a child as his wife. In other words, if an unmarried man wants to enjoy the perks of custody or parenting time with his biological child, he must assume the responsibility of initiating legal proceedings that will cement that father-child relationship, and, just as importantly, allow the judge to provide for the financial support of the minor. You cannot have one without the other. For more information about legal custody view the “Child Custody Article” To find out how the law applies to a specific situation, contact an attorney directly.


  • Who has legal custody if the parents never married?




  • Please select your county of residence below.



  • State Bar of Arizona
  • Maricopa County Bar
    Referral number 602-257-4434
  • Pima County Bar
    Referral number 520-623-4625
  • National Domestic Violence Hotline
  • Bankruptcy Court Self Help Center
  • Certified Legal Document Preparer Program


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