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Establishing Guardianship and Non-Parent Custody (in loco parentis)

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There are many ways to establish authority and gain custody over a child that is not yours. Two options include “Guardianship” and “Non-Parent Custody” (also known as in loco parentis custody). The differences between the two are great and require a thorough analysis of each person’s individual situation.

Guardianship

In Arizona a “Consent Guardianship” allow parents to give legal authority over a child to a non-parent through their written consent. This method also allows immediate withdraw of the consent and Guardianship authority. This also means that a non-parent may not petition for Guardianship if one of the parents will contest it. In this situation, the non-parent may choose to try and establish custody of the child through a “Non-Parent Custody” Petition. If you are seeking a Consent Guardianship in Arizona, give us a call at (602) 254-8880 to get a free consultation.

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Non-Parent Custody

Non-Parent CustodyIn Arizona, Arizona Revised Statute §25-415 entitled “Custody by Non-Parent” defines who and how a non-parent gain custody of a child that isn’t theirs. A non-parent can file a Petition in the County Superior Court where the child permanently resides or is located. The Petition shall include detailed facts supporting the Petitioner’s right to file the Petition, and they shall provide notice to all of the following:

  • The child’s parents,
  • A person who has Court ordered custody or visitation rights,
  • The child’s guardian or Guardian ad Litem,
  • A person or agency that has physical custody of the child or that claims to have custody or visitation rights,
  • Any other person or agency that has previously appeared in the action.
  • The Court will summarily deny the Petition unless it finds that the Petitioner by the pleadings establishes that all of the following are true:
    • The person filing the petition stands in loco parentis to the child.
    • It would be “significantly detrimental” to the child to remain or be placed in the custody of either the child’s living legal parents who wish to retain or obtain custody.
    • A Court of competent jurisdiction has not entered or approved an order concerning the child’s custody within one year before the person filed the Petition pursuant to this section, unless there is reason to believe that the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.
  • Or, any one of the following applies:
    • One of the legal parents is deceased;
    • The child’s legal parents are not married to each other at the time the Petition is filed;
    • And there is a pending proceeding for Dissolution of Marriage or for Legal Separation of the legal parents at the time the Petition is filed.

If a person other than the child’s legal parent is seeking custody, there is a “rebuttable presumption” that it is in the “child’s best interest” to award custody to the legal parents because of the physical, psychological and emotional needs of the child to be reared by the child’s legal parent. To rebut this presumption, the non-parent Petitioner must show “clear and convincing evidence” that awarding custody to the current legal parent is not in the “child’s best interest.” In addition, the Superior Court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of Arizona Revised Statute §25-409 (the Grandparents Visitation Statute) “reasonable visitation rights” to the child on a finding that the visitation is in the child’s best interest and that any of the following are true:

  • One of the legal parents is deceased or has been missing at least three months.
  • The child’s legal parents are not married to each other at the time the Petition is filed.
  • And there is a pending proceeding for Dissolution of Marriage or for Legal Separation of the legal parents at the time the Petition is filed.

A grandparent, or great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for Visitation rights with a child by filing a Verified Petition in the county in which the child is a permanent resident or where he is found. For more on the Grandparent’s Visitation click on “Grandparent’s Rights” in order to explore these options. For a free initial consultation click on “Contact Our Firm” or call The Cantor Law Group for an appointment today!

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