Introduction

Establishing paternity in Arizona is full of immediate deadlines and pitfalls. If you do not act immediately to assert your paternity, then chances are you will be out of luck.

A recent case reported by the Arizona Supreme Court further impacts potential fathers in Arizona. The case held that equitable principles under the law cannot be used to extend the time for a potential father to file a paternity case when notified of the intent to put the child up for adoption.

Facts of the Case

The father and mother in the case were in a relationship resulting in mother getting pregnant. The parties separated and mother decided to put the child up for adoption.

According to Arizona statute, the mother had to comply with § 8-106(G), which requires that she serve the father with notice of her intention to place the child for adoption.

Part of this notice informs the father that if he want to withhold consent to the adoption he must initiate paternity proceedings by filing a petition to establish paternity and serve the mother with that petition within 30 days of being served himself.

In addition, the notice must also explain to the father that if he does not file a paternity petition and pursue it to completion, then he cannot bring or maintain any action to assert any interest in the child.

In other words, if the father did not file to establish paternity and establish his paternity within 30 days of being put on notice that the mother wanted to put the child up for adoption, then the father would lose all right and ability to establish any rights or interest in the child.

Untimely Paternity Claim

In this case, the father unfortunately did just that: he failed to file a petition to establish paternity within the 30 days. Instead, his attorney filed it 16 days late.

There was no question that he filed untimely under the law. So, the only real question before the Arizona Supreme Court was whether equitable legal principles could excuse his untimely filing.

When analyzing this legal question, the Arizona Supreme Court determined whether the statute limiting the time the father had to file his petition was a statute of limitation or a statute of repose.

Equitable Principles Do Not Apply

This is a very technical and legal analysis, but suffice it to say that based on how an Indiana court analyzed and interpreted a similar paternity law in its state, the Arizona Supreme Court similarly found that the statute was a statute of repose.

The distinction is important because equitable principles cannot be used to extend the timelines imposed by statutes of repose. Because the statute timeline could not be extended, the father in this case was out of luck, and his 16-day untimeliness ultimately resulted in him losing out on his ability (forever) to be a father to his biological child.

Tough Pill to Swallow

This outcome seems harsh, and it is. Even the Arizona Supreme Court recognized the harshness of the result.

Nevertheless, the Arizona Supreme Court also recognized that Arizona law favored finality and permanency for children.

In other words, the law favors outcomes where a child’s life is not disrupted by altering the child’s parents’ status. So for example, if the Court had held the other way, then equitable principles would excuse the father’s untimely filing, and essentially disrupt the surety of the child’s adoption.

Where Would It End?

In this case, such a result would not seem all that bad as the father was only 16 days late. However, because the mechanism to allow the father some slack is based in equitable principles, it is effectively a subjective call.

Thus, if the Court had held the other way, there would be no limiting principle and in the future judges would be free to subjectively disrupt adoptions based on their subjective application of an equitable principle.

So for instance, 16 days may not seem that bad, but what about 30 days? What about 60 days? Three months? Six months? A year?

Without a limiting principle, there could be no limit as to how far a judge might allow a father to file untimely for the sake of allowing a biological father to establish right, albeit possibly very untimely, at the cost of disrupting a child’s life and who that child knows to be his or her parents for potentially a long time.

Warning to All Fathers

In the end, the Arizona Supreme Court interpreted the statutes in such a way so that equitable principles cannot be used to extend the time limit for filing a paternity action to protect against an unwanted adoption.

So, all potential fathers need to be on notice and take caution. This is yet another pitfall that can permanently terminate a potential father’s rights to his child. Potential fathers need to act quickly and correctly in order to secure their paternity rights. Feel free to contact me here if you would like to learn more or if you have paternity rights you want to establish.