Grandparents Rights In Arizona to Visitation and Custody

 

In Arizona, grandparents have certain rights to their grandchildren. These include visitation and custody.

A grandparent may request visitation or custody if they feel their grandchild is in a negative environment. In some cases, remaining with their parents can be detrimental. In minor cases, the child’s biological parents may have passed away.

Whatever the case, grandparents do have a right to spend time with their grandchildren. However, some parents may fight against this.

To win visitation and custody many things must be proven in a court. Such criteria include loco parentis and the best interest of the child.

It can be confusing to navigate these requirements alone. Seeking advice from an experienced attorney can help guide you through the issues. In fact, this course of action is highly recommended.

Such attorneys are available nation-wide. Fowler St. Clair has attorneys who specialize in Family Law Cases.

Grandparents Rights to Visitation

If you are denied visitation rights to see your grandchild, you can petition the Superior Court for these rights. Under, A.R.S. § 25-409, grandparents have the right to visitation if they meet certain criteria.

First, a judge must decide if visitation rights would be in the child’s best interest. They also consider three other factors. The courts use separate factors when determining a child’s “best interest.”

In addition to analyzing the child’s best interest, the case must also meet one of the following factors:

  • The child’s parents have been divorced for more than 3 months;
  • A parent has been deceased or missing for more than 3 months;
  • The birth conditions of the child involve wedlock or birth outside of marriage.

Proving any of these three factors is relatively simple. In most cases, this information is a matter of public record.

Meaning, anyone can find this information and present it to the court. Materials that prove these factors include birth certificates, divorce papers, and death certificates.

The challenge comes in proving that the visitation rights are a benefit to the child. When considering what is in a child’s best interest, courts look at:

  • The existing relationship between the child and grandparent;
  • The motivation of the grandparent for seeking visitation rights;
  • The motivation of the parent in denying visitation rights;
  • The amount of visitation time requested;
  • The benefit of an extended family relationship in the case of a deceased parent or parents

Documents alone cannot provide these factors. A court hearing is the only way to give evidence to support these factors. The aid of an experienced attorney can make this process less nerve-wracking. The attorney can outline a testimony and evidence.

Ideally, petitioning the court for grandparent visitation rights should occur at the same time as the underlying divorce proceedings or parenting proceedings. You can, however, petition the court separately for visitation rights.

If an outside party adopts the child, the adoption terminates the grandparent’s visitation rights completely. That is, unless, the adopting party is the stepfamily. The adopting family can also allow visitations to continue. Arizona law does not require notifying the grandparents of parenting changes or pending adoptions.

Petitioning for a grandparent’s rights to visitation requires the accurate completion of correct forms. The Maricopa County Superior Courts provides such a form. This form is also usable in other Arizona counties with slight modifications.

Grandparents Rights to Custody

Winning custody of a grandchild can be a complicated matter. Winning custody presents even more complications than winning visitation. Pursuant to A.R.S. § 25-409, a grandparent must prove a number of factors in order to win custody of their grandchild.

Grandparents must first show that they are acting in loco parentis for the child. In loco parentis means that the grandparent is acting as a parent without being the legal parent.

In other words, the Grandparent provides the child with everything a parent would. The child has a parental relationship with the Grandparent.

Other factors considered by the court when considering custody rights for Grandparents include:

  • Whether it would be detrimental to the child to remain in the grandparent’s custody, or placed in the custody of the parents;
  • Whether there have been previous rulings for the child’s custody within the last year (except in the case of physical, mental, or emotional harm);
  • Whether one or both of the legal parents are dead, divorcing, or unmarried during the proceedings.

Presumptions by the Court

In Arizona, courts make a few presumptions that grandparents must overcome in order to win custody rights.

One presumption is that parents have a constitutional right to raise their children as they see fit. But that right must be weighed against what is in the child’s best interest.

This came about after the Supreme Court Case Downs v Scheffler in December of 2003. The case helped aid grandparents in fighting for custody. The case required submission of evidence to as to why a parent would deny visitation or custody rights.

Another presumption made in the courts is that a “fit” parent will always act in the best interest of their child.

The grandparent can overcome these presumptions by presenting evidence that is clear and convincing that it would be a detriment to the child to remain in the custody of the parent.

Clear and convincing means that it is highly probable that it is not within the child’s best interest to stay with their legal parent.

 Help with Grandparents Rights

If you are seeking help with a custody or visitation petition, it is vital that you speak with an experienced attorney. The lawyers at Fowler St. Clair can provide invaluable advice in any Family Law matter. Please contact us with any questions or to discuss a case.