Question: My girlfriend and I have two children together. I would like to gain custody of them since she has been experiencing mental health issues and cannot take care of the children. I cannot afford a lawyer and have been told I cannot leave the state without her permission and was also told since the children's birth certificates establish I am the father and that they have my last name I can relocate with them. I can't get a straight answer !
If a court has already recognized paternity and granted you custody, you would need to review that court order concerning the right of relocation. If there is a court order in effect, obey it. If there is no court order of if the existing court order does not address relocation, then A.R.S. § 25-408, governs when and how a parent may relocate with a minor child. However, your question does not indicate whether you have applied for findings of paternity, custody and/or parenting time, which would be a useful - even necessary - first step. That procedure can be found at A.R.S. § 25-801, et al. You will need to review all of the '800' series within Titile 25 of the statutes.
Whether you are able to secure custody (vs. simply a right of visitation) will determine whether you can relocate with the children. Even if you succeed in having yourself named as a joint (or even sole) custodian, you must still follow the statutory procedure for moving out of state - or even within AZ if the relocation exceeds 100 miles. Those procedures depend on the custody status you possess (joint vs. sole), and can all be found at A.R.S. § 25-408 (B) - (K) .
Finally, it is rarely wise to simply grab some kids and move out of state with them, especially when the other biological parent is: (1) left behind, (2) did not give consent, and (3) has a custodial claim of her own. In fact, it's usually a pretty dumb thing to do, and could get you charged with the crime of custodial interference. Family court judges generally do not appreciate interstate child abductions, either, and you may pay the price for a tactic like that down the road. Your safest bet is to consult with a family law attorney, follow the rules for securing an order of paternity - along with custody or parenting time - and then raise the subject of relocation with the judge. Don't forget, too, that if you submit to the court's determination of paternity in an effort to win a stake in your child's future, the judge may also ask you to pay child support if it's warranted. In other words, you get the whole package as a parent - both rights and obligations - not just part of it!
February 26, 2007