If There Is No Custody Order in Place in Arizona, Can I Take My Child?


When a child is born to unmarried parents, the mother is presumed to have full legal and physical custody. Until the father petitions for paternity, sole custody rests with the mother. As such, the father would not have the right to take the child until he is awarded custody.

When a child is born to married parents, the presumption is that both parents will equally share physical and legal custody. This presumption continues until the couple files for legal separation or divorce.

If a married couple separates but does not file for legal separation or divorce, both parents would still share physical and legal custody. Each parent would have just as much right to take the child as they did before the separation. 

That said, you don’t have the right to take your child to another location in order to deny visitation to the other parent. This may be considered parental kidnapping, a serious offense that will hurt your prospects for custody when the issue goes to court.

The only exception would be for a parent who is acting in good faith to protect the child from witnessing domestic abuse or being a victim of abuse.

Get a Custody Agreement

In any case, it’s never a good idea to separate from your partner or spouse without a custody agreement. Even if you don’t want to seek a divorce or legal separation, you can hire an attorney and reach a custody agreement with your partner to ensure that each party respects the other parent’s parental rights.

A custody agreement is in the best interests of the child, too, as studies show that children benefit from a structured relationship with both parents, rather than unpredictably spending time with the visiting parent.

A Child’s Rights

The primary issue at stake in a custody dispute is the child’s rights and best interests. Legally, a child has the right to visit with both parents, communicate with both parents, and receive reasonable support. The goal of a custody order is to ensure that these rights are preserved, and that the solution maximizes the child’s best interests under the given circumstances.

Parental Rights

In Arizona, parental rights can be boiled down to two topics—parenting time and legal decision-making. Parenting time (aka visitation) refers to a parent’s right to spend private time with the child and communicate with them.

Legal decision-making (aka legal custody) refers to a parent’s right to make important decisions concerning the child’s upbringing, such as their education, religion, and healthcare.

Parents also have an obligation to provide reasonable support to their child. When parents are separated or divorced, this usually takes the form of child support payments from the non-custodial parent.

Although child support is often determined in conjunction with a custody order, it’s important to keep in mind that it’s an entirely separate legal matter. A parent who fails to make child support payments is still entitled to parenting time and legal decision-making.

Custody Orders

It’s common for both parents to share legal decision-making authority (a practice referred to as joint legal custody in other states). This doesn’t mean that the parents need to call each other over every little decision, but it certainly means that both parents should be part of the discussion for important issues.

If one of the parents isn’t interested in being a part of these important decisions, or if they’ve demonstrated that they’re unfit to make these decisions, the court can grant one parent sole legal decision-making authority. 

When it comes to parenting time, most situations necessitate that one parent takes primary custody in order to provide a stable living environment for the child. Once this determination is made, the next step is to agree on a parenting plan that balances the child’s best interests with each parent’s right to parenting time.

The state of Arizona provides some guidance on the subject with the Planning for Parenting Time guide, but it’s a very personal decision and should be customized to your situation. It will probably require some extended negotiations between the parents, too, as neither parent wants to miss out on time with their child. 

Factors the Court Will Consider When Determining Custody

ARS 25-403 specifically lists 11 factors that should be considered when determining if a custody agreement is in a child’s best interests:

  1. What was the child’s relationship with each parent in the past; what is the current relationship; and is there a potential for a better relationship in the future?
  2. How does the child interact and relate with the parents, siblings (if applicable), and other household members?
  3. How has the child adjusted to their current home, school, and community, and how would they adjust to a new environment if moved?
  4. If the child is of suitable age and maturity, what are their preferences?
  5. How is the child’s mental and physical health? The parents’? The other members of the household?
  6. Which parent is more likely to allow frequent, meaningful, and continuing contact with the other parent?
  7. Has either parent intentionally misled the court to cause an unnecessary delay, increase the cost of litigation, or persuade the court to grant them custody?
  8. Has there been child abuse or domestic violence pursuant to ARS 25-403.03?
  9. Has either parent employed distress or coercion to obtain a custody agreement?
  10. Have the parents complied with ARS 25-351 – 355?
  11. Has either parent been convicted of an act of false reporting of child abuse or neglect under ARS 13-2907.02?

Modifying a Custody Agreement

While a custody order is legally binding and fully enforceable, it can be modified when doing so is in the best interests of the child. In fact, modifying a custody order will probably be necessary as major life changes inevitably arise. It’s best (and easiest) when both parents are in agreement, but you have the right to file a motion to modify the custody agreement on your own, too. 

When you file a motion to modify a child support order, the court will schedule a hearing and you’ll be required to serve notice of the motion to the other parent.

At the hearing, you’ll have the opportunity to present your proposed changes along with evidence as to why the changes are in the child’s best interests. Of course, the other parent will have the opportunity to contest the proposed changes.

If the child is old enough, the court may assign a specialist to interview the child to determine their preferences. Based on all of the new facts and evidence, the judge will then decide if a modification is warranted.

Receive Help With Child Custody and Child Support in Arizona

When it comes to setting up a parenting time plan, visitation rights, and child custody you want to make sure that you not only have a plan that benefits your child, but all parties involved. Minimize the conflict of child custody and child support with the help of a knowledgeable & compassionate Mesa, AZ child support lawyer. At JacksonWhite Family Law, we take an aggressive approach to fighting for your rights, and will always provide support in the best interest of any minor children.

Call the Family Law Team at (480) 467-4348 to discuss your case today.

Contact Our Family Law Team

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