Suit – Discrimination Against Unwed Father’s
   




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Synopsis of the Court of Appeals Decision

Appellant, an unmarried father, failed to return his son for about nine hours past the time in which the mother verbally revoked her previously granted permission for visitation. Appellant was arrested, charged, and convicted of felony custodial interference, ARS 13-1302, and because of aggravating circumstances and prior convictions, sentenced to four years' imprisonment.
 









The Court of Appeals affirmed the conviction, upholding thereby the trial court's denial of Appellant's motion to dismiss. That motion arose from ARS 13-1302's asserted violation of the due process and equal protection clauses of the Arizona and United States Constitutions. The Court of Appeals found no error in an asserted jury instruction failure nor in the finding of aggravating factors. Only the Constitutional issues are raised in this Petition for Review.
The Court of Appeals rejected equal protection arguments against the gender-based distinction in ARS 13-1302 between a biological mother and an unadjudicated biological father, and against the legal definition distinction between married, divorced or separated fathers and unadjudicated unmarried fathers.
Unequal treatment was justified on stereotypical arguments, some recent and some ancient, that unwed fathers are not "similarly situated" to either mothers, or to married, divorced or separated fathers. The unequal exposure to criminal liability of an unadjudicated, unwed father, compared to these other categories of parents, was further justified by faulting Appellant for inconsistency or laxity in areas, such as child support or the diligent seeking of judicial declaratory relief, whereas the other categories of parents may be just as lax or inconsistent, yet enjoy under ARS 13-1302, greater immunity to prosecution and jeopardy of liberty interests. Appellant's claims were also rejected, that the requirement for a prior civil paternity adjudication of an unwed father, which is not required of married, divorced or separated fathers, nor accessible to indigents, violates his right to due process. The Court of Appeals found that ARS 13-1302 does not deprive appellant of any established parental rights, nor prevent such rights from being established, and that Appellant had available a "statutory scheme" to establish his rights regarding his child.



   



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