Appeal in Maricopa County Juvenile Action No. JD-4974, Matter of

• Citation: 785 P.2d 1248,163 Ariz. 60
• Decision Date: 25 January 1990
• Docket Number: JD-4974,CA-JV
• Parties: In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO. 189-014.
• Court: Arizona Court of Appeals

Page 1248

785 P.2d 1248

163 Ariz. 60

In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO. JD-4974.

1 CA-JV 89-014.

Court of Appeals of Arizona,

Division 1, Department B.

Jan. 25, 1990.

Robert K. Corbin, Atty. Gen. by Harriett E. Chavez, and Christine Greenfield, Asst. Attys. Gen., Phoenix, for appellee ADES.

Stephen J. Green, Phoenix, for appellee Father.

Charles E. Buri, Friedl & Richter, Phoenix, for appellant Mother.

Sheilah A. Lavelle, Phoenix, for minor child.

VOSS, Judge.

The issues in this appeal are whether the parents of a child born out of wedlock share custody of the child absent a court order, and whether A.R.S. § 13-1302(B), the criminal custodial interference statute, was violated. We hold that the parents do share custody of the child and that A.R.S. § 13-1302(B) was not violated.

Appellant is the mother of a seven year old child born out of wedlock. Appellees are the father of the child and the Arizona Department of Economic Security (ADES). Father and mother established paternity pursuant to A.R.S. § 36-322(F) ^* after the child was born, and therefore it is not in issue. There has never been a court determination of custody. The child resided exclusively with her mother from birth until ADES took the child into temporary custody and filed a dependency petition. Pending the dependency hearing, the juvenile court placed the child in the physical custody of her father. After the dependency hearing, the juvenile court dismissed the dependency petition and found that the child was in the lawful custody of her father, and that A.R.S. § 13-1302(B) did not apply.

The mother argues that the juvenile court's finding that the child was in the lawful custody of her father changed custody from the mother to the father without the necessary finding of dependency in violation of both A.R.S. § 8-241(A)(1) and A.R.S. § 13-1302(B). The father argues that the juvenile court did not change custody but simply stated that the child is in the lawful custody of her father. The father states that the natural parents of a child are entitled to custody absent a court order or its equivalent to the contrary.

A.R.S. § 8-601 provides that every child is the legitimate child of its natural parents. The natural parents of a child are entitled to custody absent some order to the contrary. State v. Grooms, 145 Ariz. 439, 702 P.2d 260 (App.1985). A father has a right to co-equal custody of his child but not exclusive custody absent a court order to that effect. State v. Donahue, 140 Ariz. 55, 680 P.2d 191 (App.1984). In domestic relations cases the parents, post-dissolution and absent an order awarding custody, have co-equal custody. Campbell v. Campbell, 126 Ariz. 558, 617 P.2d 66 (App.1980). Further, A.R.S. § 25-332(E) prohibits discrimination based on parental gender when determining custody.

We conclude that the juvenile court finding is not a custody order. The juvenile court simply articulates that the child is in the "lawful custody of her father." There is no restriction of access by the mother; the court leaves the mother legally unaffected. In this limited area, we discern no reason to distinguish between parents who are married and those who are not. If parents of children born in wedlock have co-equal custody post-dissolution and absent a court order to the contrary, parents of children born out of wedlock, whose parentage has been established, should have the same rights. The issue is parentage, not whether the child was born in or out of wedlock. Clearly, if parentage is disputed, there is no co-equal status. See Thornsberry v. Superior Court, Mohave County, 146 Ariz. 517, 519, 707 P.2d 315, 317 (1985) (where the court stated that unless there has been a prior adjudication of maternity or paternity, a court cannot determine custody or visitation rights); A.R.S. § 12-843(B); A.R.S. § 25-331(C). Since it is impermissible to determine custody based exclusively on parental gender, it is certainly impermissible to determine residence of a child, when there is no custody order, based exclusively on parental gender.

The mother next argues that A.R.S. § 13-1302(B) requires the juvenile court to return the child to her. ADES argues that A.R.S. § 13-1302(B) does not apply in the present case because the statute refers to persons who have no legal right to keep a child from another person to whom custody has been entrusted by law. ADES maintains that since custody has not been entrusted by law to either party, the statute does not apply. A.R.S. § 13-1302 provides in pertinent part:

A. A person commits custodial interference if, knowing or having reason to know that he has no legal right to do so, such person knowingly takes, entices or keeps from lawful custody any child less than eighteen years of age or incompetent, entrusted by authority of law to the custody of another person or institution.

B. If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody is determined by a court.

(Emphasis added.) This statute does not require that the juvenile court issue a custody decree in order to avoid a charge of custodial interference because "for the purposes of this section" refers to criminal prosecution. See State v. Wilhite, 160 Ariz. 228, 772 P.2d 582 (App.1989). Since the present case does not involve criminal prosecution, A.R.S. § 13-1302(B) does not apply.

The mother next argues that the finding of the juvenile court that she caused bruising to the child was erroneous and should be stricken. As the juvenile court dismissed the dependency petition, we fail to perceive any prejudice and, accordingly, do not address this issue.

The father and ADES present two arguments for our consideration. They argue that the juvenile court should be permitted to order custody even when there has been no finding of dependency. They also argue that the juvenile court incorrectly dismissed the dependency petition and that dependency should be reinstated because the father, at the dependency hearing, testified that absent the intervention of the court he was legally incapable of protecting the child, presumably because of the mother's right to custody. We do not address these...