The State of Arizona has a provision which allows grandparents to have visitation rights over a parent’s objection. In order to accomplish this; (1) the grandparent must overcome the presumption that the parent always acts “in the best interest of the child,” and (2) access to the grandparents is in the child’s best interest. This burden must be overcome by a “preponderance of the evidence” (i.e. the grandparent must show by a 51% probability that visitation is “in the child’s best interest”). For Grandparents Rights to Custody (versus mere visitation) click on “Guardianship / Non-Parent Custody” now to explore your options.
David Cantor explains third-party and grandparents rights to receive child custody:
Pursuant to Arizona Revised Statute §25-409, entitled Visitation Rights of Grandparents and Great-Grandparents, the Superior Court must find that the visitation would be in the child’s best interest and any of the following must also be true:
- The marriage of the parents has been dissolved for at least three (3) months; or
- A parent of the child is deceased or has been missing for at least three (3) months. “Missing” is defined as; the parents’ location has not been determined and the parent has been reported missing to a law enforcement agency; or
- The child was born out of wedlock.
In determining what is in the child’s best interest, the statute mandates that the Court shall consider all relevant factors, including:
- The historical relationship between the child and the person seeking visitation;
- The motivation of the requesting party;
- The motivation of the person denying visitation;
- The quantity of visitation time requested and the potential adverse impact that the visitation will have on the child’s customary activities; and
- If one or both of the child’s parents are dead, what is the benefit in maintaining an extended family relationship?
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Grandparents, or other third parties, may be an important part of the lives of many children in Arizona. Many grandparents or other third parties develop close and loving relationships with the child and may have deep bonds with them. When a parent prevents a grandparent or other third party from being able to see the child, it can be damaging for both the child and the third party.
Traditionally, child visitation and child custody cases were decided between the parents of children. In 1983, however, the Arizona legislature amended the family laws to add Arizona Revised Statute § 25-409. This statute covers third-party petitions for visitation or custody, including grandparents. Under A.R.S. § 25-409(C), a grandparent may petition the court for visitation with his or her grandchild. The court may grant the grandparent’s visitation petition if the court finds that doing so is in the child’s best interests. The court must also find that one of these factors exists:
- One of the legal parents is deceased or has been “missing” for at least three months
- The child’s legal parents are not married at the time the petition was filed
- A proceeding for dissolution of marriage or for legal separation of the parents is pending at the time that the petition is filed.
For a parent to be missing, as used in the statute, means that the parent has been absent and his or her location is unknown. It also means that law enforcement has been notified that the parent is missing.
Determining What’s Best for the Child
The court must also give special weight to the opinion of the legal parents concerning what is in the child’s best interests. When the court considers the best interests of the child, the judge must consider all relevant factors, including:
- The historical relationship, if any, between the child and the person seeking visitation.
- The motivation of the requesting party seeking visitation.
- The motivation of the person objecting to visitation.
- The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
- If one or both of the child’s parents are deceased, the benefit in maintaining an extended family relationship.
If the court finds that it is appropriate to grant visitation rights to the third party, it will order that the visitation time occurs during the time when the child is visiting the parent that is their relative. This means that the third party’s visitation should occur when the child is visiting the parent that has a relationship with the third party. If that is not possible such as when the parent is deceased, missing, or has no visitation rights of his or her own, the court may order that the third party visitation occurs during the times that the parent would have received visitation time.
A grandparent will be able to easily prove that either a parent has died, or that a divorce has occurred prior to the grandparent petitioning the Court. It becomes much more difficult when the remaining spouse (who presumably has sole custody) is objecting to the grandparents visiting the grandchild. This is why it is important to have an experienced law firm, such as The Cantor Law Group, prepare all the evidence to be presented to the Court in order to show that visitation would be in the child’s best interest.
The statute also states that once Grandparent visitation is granted, the Court should attempt to order visitation to occur when the child is residing or spending time with the parent through whom the grandparent claims the right of access to the child. In other words, if the parents are divorced and share joint custody, the grandparents should have visitation at the same time that the child would normally be with the parent who is related to the grandparents. If that is logistically not possible, then the Court shall order visitation by grandparent to occur when the parent would have had the visitation opportunity.
Petitioning for Visitation Rights
The statute also requires that a petition be filed for grandparents rights in the same action in which the parents had their marriage dissolved (or in which the Court determined Paternity or Maternity), or by a separate action in the county where the child resides if no action has been filed; or if the Court entering the decree of dissolution or determination of Paternity or Maternity no longer has jurisdiction. All visitation rights are automatically terminated if the child is placed for adoption. An exception to this requirement is if the adoption application was placed by the new spouse of a natural parent if the natural parent has remarried.
Under the statute, a third party’s petition for visitation must be filed in the same case in which custody and visitation was determined between the parents. If no case was previously filed by either parent, the third party must file his or her petition in the county in which the child lives. Once the petition is filed, the third party must provide notice by serving copies of the petition and all of the supporting affidavits to the following parties:
- The child’s legal parents.
- A third party who possesses legal decision-making authority over the child or visitation rights.
- The child’s guardian or guardian ad litem.
- A person or agency that possesses physical custody of the child or claims legal decision-making authority or visitation rights concerning the child.
- Any other person or agency that has previously appeared in the action.
Grandparents’ visitation rights took somewhat of a setback in the year 2000 when the U.S. Supreme Court ruled that the parent has a right to control the amount of time that the grandparents can have possession of a grandchild. In Troxel v. Granville, the U.S. Supreme Court held that the Washington State’s non-parent possession statute (i.e. their Grandparents’ Statute) should be overturned. The Court held that the statute was too broad because it allowed any person to come to Court and challenge the parents’ right to the child’s possession. The Court did note that all 50 states have a grandparents’ possession statute and they were specifically limiting their ruling to the Washington State statute.
The bottom line is the Arizona’s Statute has been upheld and an Arizona Court will look for what is in the “child’s best interest” when it comes to visitation of your grandchild.
There are some situations in which a child’s parent or parents may be unfit. It is possible in some situations for the third party to petition for legal decision-making authority for their grandchild. However, these petitions will be denied unless the court finds the following factors are true:
- The third party is standing in loco parentis for the child;
- It would be harmful to the child to stay or to be placed in the care of the legal parent who has or who is seeking custody;
- A court has not entered or approved an order for legal decision-making authority within one year unless the child’s present environment places him or her in serious danger of harm to his or her emotional, physical, moral, or mental health; and
- One of the child’s legal parents is deceased; or
- The child’s parents are not married; or
- A divorce petition is pending.
In loco parentis is a Latin phrase that means to act in the capacity of a parent. There is a rebuttable presumption that placing the child in the custody of his or her legal parent is in the child’s best interests. This presumption may only be overcome if you are able to prove to the court by clear and convincing evidence that placing the child in his or her legal parent’s custody would not be in the grandchild’s best interests.
This may be a difficult presumption to overcome unless you have strong evidence that your grandchild’s emotional, mental, moral, or physical health would truly be in danger if he or she was placed or remained in the legal parent’s care.
An child custody attorney at the Cantor Law Group can review the evidence that you have and advise you about the likelihood that you might prevail in your petition for the custody of your grandchild.
If at any time the child is “put up for adoption,” the visitation rights will end. This does not apply if the person adopting the child is a step-parent who is married to the child’s legal parent. If a child is removed from his or her adoptive home, the court is allowed to reinstate the grandparent’s visitation.
Unless the legal parent or other party or agency signs a waiver of service, the third party will have to provide notice of the action by having him or her served with process. Under Arizona Rules of Civil Procedure 4.1(d), the party may be served by personally delivering a copy of the petition and summons to him or her. The person may also be served by leaving a copy of the petition and summons with another person who is old enough who lives in the home. Finally, if an agency is involved, service of process may be completed by serving the designated agent for the receipt of service of process.
The person who serves the process must be one of the following parties:
- Sheriff’s deputy
- Private process server who is registered with the court
- Any other person who is appointed by the court to serve process
Private process servers and specially appointed persons must be a minimum of 21 years old and cannot be a party of the action or his or her attorney.
If you fear the child will be put up for adoption, contact our attorneys immediately.
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In the Court of Appeals of Arizona January 2016 case, Goodman v. Forsen, the Court of Appeals made it clear that a parent’s determination regarding parenting time is controlling. In fact, the Goodman Court went on to state, “even if arbitrary, the parents’ determination is the primary factor in the analysis” emphasis added. Goodman v. Forsen, 239 Ariz. 110, 14 (App. Ct. 2016). The burden is on the person seeking visitation to demonstrate that denial of visitation would clearly and substantially impair the child’s best interests. As such, a parent’s decision regarding who they allow around their child or children carries a lot of weight.
However, in 2018, the Supreme Court of Arizona reviewed an appeal from the Superior Court of Pima County that granted visitation rights to the child’s paternal grandparents. Friedman v. Roels, 244 Ariz. 111 (2018). The Mother of the Child filed the appeal stating that her wishes regarding the visitation were not given “special weight” when determining the visitation. The Supreme Court affirmed the Supreme Court’s decision by finding that the visitation was in the child’s best interest and that the Mother’s decision to deny visitation was not.
The Friedman Court holds that “when two legal parents disagree about whether visitation is in their child’s best interests, both parents’ opinions are entitled to special weight under A.R.S. § 25- 409(E)…under those circumstances, neither parent is entitled to a presumption in his or her favor and the parents’ conflicting opinions must give way to the court’s finding on whether visitation is in the child’s best interests.”
Further, it does not matter if the parent is declared a fit parent for the Court to honor their opinion regarding visitation with a third party. Friedman goes on the clarify that because A.R.S. § 25-409(E) affords “special weight” to “legal parents,” whether a parent is entitled to “special weight” does not turn on whether the parent is declared to be a “fit” parent, but on whether the parental rights are still intact. If the parental rights have not been terminated, they are a “legal parent” whose visitation opinion is entitled to “special weight” under A.R.S. § 25-409(E).
Additionally, although Arizona law requires a showing of “significant detriment to the child” when a non-parent seeks legal decision-making authority or child placement, § 25-409(A)(2), it contains no such requirement in the visitation context, see §§ 25-409(C), (E), (F). Friedman rejects Goodman’s broader interpretation of “special weight” and disavows that case insofar as it purports to subject a non-parent to a heightened burden of proof beyond that required under Troxel (530 U.S.) and McGovern(201 Ariz. 172 (2001)).
Therefore, if both legal parents disagree regarding visitation for a third party the Court standard is lowered to the best interest standard rather than the Goodman standard that denial of visitation would clearly and substantially impair the child’s best interests.
Help from the Attorneys at the Cantor Law Group
As a third party, you may have developed a close relationship and bond with the child. It can be emotionally devastating for both you and the child when you are prevented from seeing each other. You may also be able to seek legal custody or to adopt the child in situations in which his or her health would be in danger if he or she were to remain or to be placed with his or her legal parent.
Overcoming the presumptions and proving that you should be granted visitation rights or custody of the child can be difficult, and it is not possible in every case. When you have help from an experienced grandparent’s rights lawyer at the Cantor Law Group, you may be able to increase your chances of prevailing with your petition. We can review the facts and circumstances of your case and provide you with an honest assessment of its merits.
Schedule a Consultation Today by calling us at 602.254.8880 or filling out our contact form below.