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

CourtCourt of Appeals of Arizona
Writing for the CourtVOSS
Citation785 P.2d 1248,163 Ariz. 60
Decision Date25 January 1990
Docket NumberJD-4974,CA-JV
PartiesIn the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO. 189-014.

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.

Page 1249

[163 Ariz. 61] 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

Page 1250

[163 Ariz. 62] 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...

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8 practice notes
  • Gutierrez v. Fox, No. 1 CA–SA 17–0047
    • United States
    • Court of Appeals of Arizona
    • April 13, 2017
    ...custody of his child but not exclusive custody absent a court order to that effect." Maricopa County Juv. Action No. JD–4974 , 163 Ariz. 60, 62, 785 P.2d 1248 (App. 1990). Our legislature has declared, as Arizona public policy, that it is in the best interests of a child, absent eviden......
  • Chau v. United States Department of Homeland Security, No. CIV 03-00422-PHX-SMM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • March 28, 2006
    ...custody of his father if "parentage has been established." See In re Appeal in Maricopa County Juvenile Action No. JD-4974, 163 Ariz. 60, 785 P.2d 1248, 1250 (1990). The Court again concluded that an issue of fact existed, as the identity of Chau's father was While the Court there......
  • Smith v. Smith, 1 CA-CV 21-0317 FC
    • United States
    • Court of Appeals of Arizona
    • April 5, 2022
    ...to co-equal custody of their child. Gutierrez , 242 Ariz. at 269, ¶ 42, 394 P.3d at 1106 (citing Maricopa Cnty. Juv. Action No. JD-4974 , 163 Ariz. 60, 62, 785 P.2d 1248, 1250 (App. 1990) ). By statute, Arizona's public policy is "absent evidence to the contrary, it is in the best inte......
  • Strother v. State, Nos. A-4827
    • United States
    • Court of Appeals of Alaska
    • March 3, 1995
    ...event alters this situation. See L.A.M. v. State, 547 P.2d 827, 832 n. 13 (Alaska 1976); Appeal of Maricopa County Juvenile Action, 163 Ariz. 60, 785 P.2d 1248, 1250 (App.1990). Strother contends that, unless a court has taken action to alter a parent's right of physical custody, a parent i......
  • Request a trial to view additional results
8 cases
  • Gutierrez v. Fox, No. 1 CA–SA 17–0047
    • United States
    • Court of Appeals of Arizona
    • April 13, 2017
    ...custody of his child but not exclusive custody absent a court order to that effect." Maricopa County Juv. Action No. JD–4974 , 163 Ariz. 60, 62, 785 P.2d 1248 (App. 1990). Our legislature has declared, as Arizona public policy, that it is in the best interests of a child, absent eviden......
  • Chau v. United States Department of Homeland Security, No. CIV 03-00422-PHX-SMM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • March 28, 2006
    ...custody of his father if "parentage has been established." See In re Appeal in Maricopa County Juvenile Action No. JD-4974, 163 Ariz. 60, 785 P.2d 1248, 1250 (1990). The Court again concluded that an issue of fact existed, as the identity of Chau's father was While the Court there......
  • Smith v. Smith, 1 CA-CV 21-0317 FC
    • United States
    • Court of Appeals of Arizona
    • April 5, 2022
    ...to co-equal custody of their child. Gutierrez , 242 Ariz. at 269, ¶ 42, 394 P.3d at 1106 (citing Maricopa Cnty. Juv. Action No. JD-4974 , 163 Ariz. 60, 62, 785 P.2d 1248, 1250 (App. 1990) ). By statute, Arizona's public policy is "absent evidence to the contrary, it is in the best inte......
  • Strother v. State, Nos. A-4827
    • United States
    • Court of Appeals of Alaska
    • March 3, 1995
    ...event alters this situation. See L.A.M. v. State, 547 P.2d 827, 832 n. 13 (Alaska 1976); Appeal of Maricopa County Juvenile Action, 163 Ariz. 60, 785 P.2d 1248, 1250 (App.1990). Strother contends that, unless a court has taken action to alter a parent's right of physical custody, a parent i......
  • Request a trial to view additional results

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