Full question:
I filed for divorce November 2 2000 and i applied for an order of protection oct 27 2000. Also i had a vasectomy may 5 2000. The divorce lasted over 2 years and was final march 21st 2003 in which i received full custody of my 3 daughters. On august 24 2001 my estranged wife gave birth to a boy, almost 10 months after i filed for divorce. The babies biological father is on the birth certificate and in 2002 she took him to court to establish paternity and child support. He disappeared and never fulfilled his responsibility. Now in 2011 my ex has had cps take the 3 children she had out of wedlock away from her due to drug use. I was served by the court naming me as the father of the child born while we were still legally married. What rights do i have? This is so wrong in so many ways. Am i considered the presumed father because of some stupid law?
- Category: Paternity
- Subcategory: Marriage
- Date:
- State: Arizona
Answer:
If you were married at the time the child was born, the law presumes you are the father. However, this presumption may be rebutted by clear and convincing evidence, such as a paternity test.
To establish paternity through the court, one of the parents must file documents necessary to start a court case. This can be done during the mother’s pregnancy or any time before the child reaches the age of eighteen. Either the mother or the putative father must file a written "petition" with the Clerk of the Superior Court, stating the names and social security numbers of each person involved and indicating who the father is claimed to be. The person who files the petition must have it served on the other party, who then has an opportunity to respond. Usually, the court then orders that genetic testing be done. If the results of the test indicate a likelihood of paternity of 95% or more, the man is presumed to be the father. Most often the case is then resolved, but it is possible that a court trial may be necessary if the presumed father continues to dispute paternity. Persons considering filing a court action may wish to consult an attorney to assist them.
When a court case is concluded (and the person claimed to be the father is proven by genetic testing or otherwise to be the biological father), the court will issue an order establishing legal paternity. In some circumstances, the court also may order an amount to be paid for future child support, for any past child support that is due, an amount to be paid for the costs of the child’s birth and medical insurance coverage for the child. A parenting time (formerly called visitation) schedule may also be established by the court order.
Please see the following AZ statute:
25-814. Presumption of paternity
A. A man is presumed to be the father of the child if:
1. He and the mother of the child were married at any time in the ten months immediately preceding the birth or the child is born within ten months after the marriage is terminated by death, annulment, declaration of invalidity or dissolution of marriage or after the court enters a decree of legal separation.
2. Genetic testing affirms at least a ninety-five per cent probability of paternity.
3. A birth certificate is signed by the mother and father of a child born out of wedlock.
4. A notarized or witnessed statement is signed by both parents acknowledging paternity or separate substantially similar notarized or witnessed statements are signed by both parents acknowledging paternity.
B. If another man is presumed to be the child’s father under subsection A, paragraph 1, an acknowledgment of paternity may be effected only with the written consent of the presumed father or after the presumption is rebutted. If the presumed father has died or cannot reasonably be located, paternity may be established without written consent.
C. Any presumption under this section shall be rebutted by clear and convincing evidence. If two or more presumptions apply, the presumption that the court determines, on the facts, is based on weightier considerations of policy and logic will control. A court decree establishing paternity of the child by another man rebuts the presumption.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
