Arizona Appeals Courts Issue Conflicting Rulings On Paternity Laws

By Alexandra Olgin
Published: Monday, November 30, 2015 - 5:05am
Updated: Monday, November 30, 2015 - 7:48am
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Before being adopted, a child has to be legally separated from his or her biological parents. Fathers have a small window to claim their paternity before losing parental rights. Arizona’s two appeals courts have issued different decisions in cases where fathers tried to stop adoptions of their biological children. That’s calling into question how much a father needs to do to demonstrate a relationship with his child.

The discrepancy is about a list known as the putative father registry. According to state law, men who think they may have fathered a child out of wedlock need to add their names to this list to be notified of adoption proceedings. Fathers can register before the child is born, but they only have a 30-day window after the birth.

“Ever since these statutes were passed, I had a really difficult time with that particular issue and I knew it was going to eventually come to a head," family law attorney Lon Taubman said.

The two divisions of the state appeals court reached conflicting decisions about whether registration is a necessary step for fathers who want to protect their paternal rights. In a 2015 decision from the division one appeals court based in Phoenix, the court ruled the registry is a supplement to legally establishing paternity.

Taubman said this ruling contradicts what the judges on the Tucson appeals court decided in 2008. “They believe their outcome was better than the Tucson outcome and more protective of the fathers’ rights," he said.

Fathers’ rights are something David Hamu advocates for. He is with an Arizona advocacy organization. He feels the way fathers are notified their rights may be severed is unfair. If a dad can’t be located to be physically served with the court papers, notice can be published in a newspaper of general circulation.

“I do commiserate with policy makers and the courts that they haven’t found a better solution,” Hamu said. “But I think it’s because lack of effort more so than a better solution not being out there.”

Hamu said in many cases those notices don’t reach their intended audience. And once those notices are printed, fathers have 30 days to file paternity action in court. But according to the Arizona Appeals Court - Division Two, legal paternity action isn’t enough. That 2008 ruling requires a dad to also add his name to the state’s putative father registry.

“Ultimately, something has to give here,” Taubman said. “Because we have a state now that has basically conflicting opinions.”

In Arizona not knowing about the pregnancy is not an acceptable legal reason for men not asserting paternal rights in time. According to state law, the act of sexual intercourse is enough notice of a potential pregnancy. Now it’s up to the Arizona Supreme Court to decide if it wants to weigh in on the matter.

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