Grandparent & Non-Parental Custody & Visitation Rights
In some cases, a non-parent who has established a meaningful and substantial relationship with a child may want legal decision making 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 (legal decision making) or a request for visitation.
In Loco Parentis & Non-Parent Custody Rights
In order for a non-parent to request legal decision making 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 legal decision making 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 and would be substantially detrimental to the child.
In order to request visitation (as opposed to legal decision making or primary placement) the non-parent must establish that the visitation is in the child’s best interest, as well as other criteria.
In Arizona, In Loco Parentis custody and visitation rights are covered by Arizona Revised Statute §25-409, outlined below:
A.R.S. §25-409. Third Party Rights
A. Pursuant to section 25-402, subsection B, paragraph 2, a person other than a legal parent may petition the superior court for legal decision-making authority or placement of the child. The court shall summarily deny a petition unless it finds that the petitioner’s initial pleading establishes 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 care of either legal parent who wishes to keep or acquire legal decision-making.
3. A court of competent jurisdiction has not entered or approved an order concerning legal decision-making or parenting time 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:
(a) One of the legal parents is deceased.
(b) The child’s legal parents are not married to each other at the time the petition is filed.
(c) A proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.
B. Notwithstanding subsection A of this section, it is a rebuttable presumption that awarding legal decision-making to a legal parent serves the child’s best interests because of the physical, psychological and emotional needs of the child to be reared by a legal parent. A third party may rebut this presumption only with proof showing by clear and convincing evidence that awarding legal decision-making to a legal parent is not consistent with the child’s best interests.
C. Pursuant to section 25-402, subsection B, paragraph 2, a person other than a legal parent may petition the superior court for visitation with a child. The superior court may grant visitation rights during the child’s minority 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. For the purposes of this paragraph, a parent is considered to be missing if the parent’s location has not been determined and the parent has been reported as missing to a law enforcement agency.
2. The child was born out of wedlock and the child’s legal parents are not married to each other at the time the petition is filed.
3. For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months.
4. For in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.
D. A petition filed under subsection A or C of this section must be verified or supported by affidavit and must include detailed facts supporting the petitioner’s claim. The petitioner must also provide notice of this proceeding, including a copy of the petition and any affidavits or other attachments, and serve the notice pursuant to the Arizona rules of family law procedure to all of the following:
1. The child’s legal parents.
2. A third party who possesses legal decision-making authority over the child or visitation rights.
3. The child’s guardian or guardian ad litem.
4. A person or agency that possesses physical custody of the child or claims legal decision-making authority or visitation rights concerning the child.
5. Any other person or agency that has previously appeared in the action.
E. In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents’ opinion of what serves their child’s best interests and consider all relevant factors including:
1. The historical relationship, if any, between the child and the person seeking visitation.
2. The motivation of the requesting party seeking visitation.
3. The motivation of the person objecting to visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5. If one or both of the child’s parents are deceased, the benefit in maintaining an extended family relationship.
F. If logistically possible and appropriate, the court shall order visitation by a grandparent or great-grandparent if the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child.
G. A grandparent or great-grandparent seeking visitation rights under this section shall petition in the same action in which the family court previously decided legal decision-making and parenting time or, if no such case existed, by separate petition in the county of the child’s home state, as defined in section 25-1002.
H. All visitation rights granted under this section automatically terminate if the child is adopted or placed for adoption. If the child is removed from an adoptive placement, the court may reinstate the visitation rights. This subsection does not apply if the child is adopted by the spouse of a natural parent after the natural parent remarries.