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Grandparents Can’t Prevent Move by Custodial Parent, Court Holds

A law giving grandparents visitation rights in divorce cases doesn’t allow them to block a custodial parent form moving out of the state, taking the child along, the state Court Of Appeals ruled Tuesday.

In a unanimous decision, the judges said the ability to prevent a move is limited to the non-custodial parent.

Stanley Murray, [a Cantor Law Group attorney] who specializes in grandparental visitation rights cases, said the ruling effectively undermines the whole 1983 law, which first gave grandparents the right to see their grandchildren after a divorce.

Murray said he expects to ask the state Supreme Court to review the decision. But he conceded it may take legislative action to guarantee the rights lawmakers first granted 24 years ago.

That law came at the behest of grandparents who complained a parent who got custody of a child after a divorce would deny access to the former spouse’s parents. They argued children were being unfairly denied access to extended family.

The law says courts can grant grandparents visitation rights if a judge determines it is “in the best interest of the child.” Courts are required to consider various factors, ranging from the historical relationship between the grandparent and the child to the reasons the custodial parent is denying visitation.

The case involves Kiley Sheehan, who was awarded custody of a child after her divorce. The child’s grandmother, Lou Ann Flower, subsequently sought visitation time, which a trial judge awarded over the mother’s objections.

Two years ago, though, Sheehan announced she would be going to Indiana to care for an ailing relative. Flower asked a Maricopa County Superior Court judge to prevent the move, saying the sole purpose of Sheehan’s action was to prevent visitation.

By the time the judge held a hearing, Sheehan had permanently moved to Indiana.

Murray, representing the grandmother, said divorce laws say a custodial parent who wants to relocate has to give notice. The law also permits a judge to forbid relocation if it’s in the child’s best interests.

But appellate Judge Patricia Norris pointed out the statute refers only to “parents.” That, Norris said, means grandparents have no such rights.

“The court’s already determined it’s in the interests of the child to have access to the grandparents,” Murray said. “How can the parent just take off and not have to worry about it any more?”

Murray said lawmakers could fix the problem. “I’m hoping the legislature would do that,” he said.

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