Grandparents' Rights

Arizona Grandparent Rights Lawyer

Grandparents' Rights in Arizona

Step-Parent Rights in Arizona

At Bishop Law Office P.C., we represent grandparents seeking to protect the relationship they have with their grandchildren. To learn more about the state of grandparents' rights in Arizona, contact a lawyer at one of our offices in Phoenix or Tempe.

Non-Parent Custody and Visitation

In some cases, a non-parent who has established a meaningful and substantial relationship with a child may want custody or visitation with the child. Such person is often a grandparent or relative of the child, but is sometimes not related at all (such as a former stepparent). In certain circumstances, such person may be able to file a request for custody or a request for visitation.

In Loco Parentis and Grandparents' Rights

In order for a non-parent to request custody or primary placement of the child, one must first establish that he or she stands “In Loco Parentis” to the child.

In loco parentis is Latin for "in place of a parent." Such is a person essentially treated as a parent by the child, and who has formed a meaningful relationship with the child for a substantial period of time.

In Arizona, a non-parent can request custody by alleging, among other things, that it would be significantly detrimental (harmful) for either of the child's legal parents to have custody. This is a difficult burden to prove and sustain since it is typically viewed that parents have a fundamental right to the care, custody and management of their child(ren). Grandparents, stepparents, relatives and non-relatives should be prepared to prove that awarding custody to the legal parent(s) is not in the child’s best interest.

In order to request visitation (as opposed to custody or primary placement) the non-parent need only establish that the visitation is in the child’s best interest.

In Arizona, In Loco Parentis custody and visitation rights are covered by Arizona Revised Statute §25-415, reprinted below:

A.R.S. §25-415. Custody by non-parent; presumption; grounds; definitions A. A child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found. The petition shall include detailed facts supporting the petitioner's right to file the petition. The petitioner shall provide notice as required by subsection E. Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true:

  1. The person filing the petition stands in loco parentis to the child.
  2. It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody.
  3. A court of competent jurisdiction has not entered or approved an order concerning the child's custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.
  4. One of the following applies:
  5. (a) One of the legal parents is deceased.
  6. (b) The child's legal parents are not married to each other at the time the petition is filed.
  7. (c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.

B. If a person other than a 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 a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.

C. 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 section 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child's best interests and that any of the following is true:

  1. One of the legal parents is deceased or has been missing at least three months.
  2. The child's legal parents are not married to each other at the time the petition is filed.
  3. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.

D. A grandparent, a 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 permanently resident or is found.

E. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following:

  1. The child's parents.
  2. A person who has court ordered custody or visitation rights.
  3. The child's guardian or guardian ad litem.
  4. A person or agency that has physical custody of the child or that claims to have custody or visitation rights.
  5. Any other person or agency that has previously appeared in the action.

F. A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child. G. For the purposes of this chapter:

  1. "In loco parentis" means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.
  2. "Legal parent" means a biological or adoptive parent whose parental rights have not been terminated.

Grandparents' Visitation Rights

Arizona law, specifically A.R.S. §25-409 permits a grandparent to request court-ordered visitation in certain circumstances:

  1. If the parents have been divorced for at least three months, or
  2. If one parent has been missing for at least three months, or
  3. If the child was born out of wedlock.

Of course, there are other considerations to take into account as well, specifically, whether the visitation would be in the children’s best interests. In determining a child’s best interests courts will look a number of relevant factors including:

  1. The historical relationship between the child and grandparent
  2. The motivation of the grandparent seeking visitation
  3. The motivation of the person denying visitation
  4. The quantity of visitation time requested and the impact the visitation will have on the child’s customary activities
  5. If one or both of the child’s parents are dead, the benefit of maintaining an extended family relationship

The court must also consider if the visitation will be logistically possible and appropriate.

Typically, grandparents may petition for visitation rights in the same action the parents had their marriage dissolved in or by a separate action in the county where the child resides, for the purpose of obtaining a court order for visitation with grandchildren.

The attorneys at Bishop Law Office P.C., can provide grandparents and other persons seeking custody or visitation with the information and legal representation they need to assert their rights. To learn more about grandparents' rights, contact us to schedule an appointment today.