Legal Guardianship of a Child (Arizona)

Legal Guardianship of a Child (Arizona)

Grandparents are Legal Guardian of Children

There are many ways for an adult 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 by an experienced Phoenix guardianship lawyer.

Establishing Legal Guardianship of a Child

In Arizona, “Consent Guardianship” allows parents to give legal authority over a child to a non-parent adult through their written consent, to become the legal guardian of a child. This method also allows immediate withdrawal of the consent and Guardianship authority. This also means that a non-parent adult may not petition for Guardianship if one of the parents will contest it. In this situation, the non-parent adult may choose to try and establish custody of the child through a “Non-Parent Custody” Petition in family court. It is important to schedule a free consultation with one of our guardianship lawyers to understand the guardianship process in Phoenix.

The state of Arizona recognizes guardianship as the authority to make crucial decisions on behalf of a child, such as those related to education, healthcare, living arrangements, and personal matters. Guardianship proceedings are held in Arizona Family Court, and the judge makes the final decision.

Phoenix Guardianship Attorney

Make sure you hire a Phoenix guardianship attorney who knows the process and the different types of guardianships. There are two different types of child guardianships in Arizona, which differ from adult guardianship:

  • Title 8: Guardianships that are filed during a dependency action and require Court permission.
    • Revocation:Although Title 8 Guardianship is considered permanent (i.e., in place until the child turns 18); a legal parent can petition the court to consider a revocation or termination of a Title 8 Permanent Guardianship.
    • It is the responsibility of the petitioning parent to prove to the court that he/she has made significantchanges in his/her life and that the original reason the child was removed from his/her care no longer exists (A.R.S. § 8-873).
  • Title 14: Guardianships can be filed when someone other than the parent wants to be appointed by the Court to take over parental responsibilities AND either both living parents (whose parental rights have not been permanently severed [terminated or cut off] by court order) will consent to the guardianship or at least will not oppose the appointment. Guardians take over parental responsibilities for making decisions regarding housing, medical care, and education, among other things, for as long as the guardianship lasts.
    • Revocation: When a legal parent is ready to resume care of their child(ren), they can file a Revocation of Parental Consent to Guardianship and Petition to Terminate The Guardianship. Once the request is submitted to the court a hearing will be set, at which time a judge will decide whether to terminate the Title 14 Guardianship.

If you are seeking a Legal Guardianship in Arizona, give us a call at (602) 254-8880 or fill out our contact form here.

What is Non-Parent Custody

In Arizona, ARS § 25-415, entitled “Custody by Non-Parent” defines who and how a non-parent adult gains 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.”

Granting Guardianship to a Child’s Grandparents or Great-Grandparents

In addition, the Family Superior Court may grant a person who stands in loco parentis to a child. This includes grandparents and great-grandparents, who meet the requirements of Arizona Revised Statute § 25-409 (the Grandparent 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.

Different than Adult Guardianship

Becoming the guardians of a child in a family court is different than a guardianship or conservatorship in Phoenix probate court. A conservator is appointed for an adult when that person becomes incapacitated. The appointed guardian is generally appointed to make medical decisions for the incapacitated adult. This may involve a power of attorney, estate planning, or a conservatorship. A conservatorship addresses taking control of an incapacitated adult’s financial decisions. Guardianships and conservatorships in probate court differ in this way, and conservatorship lawyers should be able to guide you through the guardianship and conservatorship process. A Phoenix guardianship attorney who handles custody of a child will guide you through this process in family court. It is important to seek the advice of our experienced Phoenix guardianship attorneys to determine what is the best option for your situation.

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