Grandparents Rights in AZ
For a family with children, divorce doesn’t just affect the immediate family; divorce impacts the entire family, including grandparents. Divorce litigation can become a battle, and the grandparent/grandchild relationship is often a casualty of war. Arizona Law recognizes a third-party rights’ to minor children. Under the statute, third-parties, as well as grandparents, may petition the court for visitation or even legal decision-making (custody) of minor children.
There are grandparents rights in AZ!
Obtaining grandparents’ rights involves two overlapping Arizona statutes: 25-402 and 25-409. It is important to consult a lawyer about how the statutes work. Section 402 gives the family court jurisdiction, or allows the party to file a request for visitation. Section 409 outlines the required factors in order for grandparents to establish their claim. Grandparents must file a petition seeking visitation in the county where the grandchild resides or if there is a previous case addressing the minor children in family court, the petition must be filed in the same case. The grandparents’ petition must state the grounds of the petition, all of which must be proved by clear and convincing evidence. The factors include:
- Historical relationship between the grandparents and the minor child,
- Reasons why grandparents want visitation,
- Reasons one or both parents object to visitation,
- Length of visits requested and whether such visits would result in a negative impact on the child’s schedule,
- If one parent is deceased, the value of a continuing relationship with the grandparent(s).
The court will consider the legal parent’s opinion of whether visitation would serve the best interests of the child.
Arizona statute 25-409 also provides an avenue for a grandparent or a third-party to obtain legal decision-making (custody). The requirements are strict. The party seeking an order must establish, by clear and convincing evidence, the following:
- The person stands in loco parentis to the child, meaning they have acted as a substitute parent,
- If either or both parents wish to have legal decision-making, the minor child would be at risk if in their care,
- No court has issued a legal decision-making or parenting time order within one year before the filing, unless the child faces physical, emotional or moral harm if they remain in the current situation, and
- Either one of the parents is deceased, the parents are not married to each other when the petition is filed, or a divorce between the parents is pending.
All of these factors must be proven by clear-cut, distinct facts. A parent with legal decision-making authority is presumed to act in the best interests of the child. The third-party must outline a strong case in their petition in order to overcome such a presumption.
Divorce and separation significantly affects any minor children, as well as the entire family. If a minor child has a close relationship with grandparents or a third-party, parents should be especially careful to take measures to protect those relationships.