Arizona provides limited rights to grandparents seeking visitation, custody, and adoption of their grandchildren. In our society, grandparents often fill important roles in the upbringing and care of their grandchildren, and in the current economy grandparents may be better able financially to provide for their basic needs and necessary comforts.
In 1983, the Arizona legislature amended state law to create a legal right to visitation for grandparents and great-grandparents. According to our Mesa divorce attorney, under Arizona Revised Statutes Title 25 Section 409 (ARS § 25–409) grandparents may petition courts for visitation rights if in the child’s best interests and at least one of the following circumstances is present:
- The marriage of the child’s parents has been dissolved for at least three months, and the petitioner is the parent of the child’s non-custodial parent
- One of the child’s parents has been deceased or missing for at least three months, and the petitioner is the parent of the child’s deceased or missing parent
- The child’s parents never were married
- In determining the best interests of the child, Arizona law requires consideration of “all relevant factors,” including five statutory provisions:
- The historical relationship between grandparent and child
- The motivation of the petitioner in seeking visitation rights
- The motivation of the parent in denying visitation
- The amount of visitation time sought by the petitioner and any potential adverse impact on the child’s customary activities
- The benefit of maintaining visitation with extended family members when one or both parents are deceased
The Mesa divorce attorney advises grandparents seeking visitation rights to petition the court as part of any pending divorce or paternity proceeding. Otherwise, grandparents may petition separately.
Grandparents also have the right to adopt grandchildren under Arizona adoption law, generally first seeking temporary custody if not already in place pending the adoption. If another party adopts the child, grandparent visitation rights may terminate. All visitation rights end after an adoption except in step-parent adoptions. Grandparents with visitation rights may not even be notified of pending adoptions of their grandchildren, and their visitation rights may terminate without any type of notice.
Custody Rights/Best Interests of the Child
To petition for custody, the grandparent must meet provisions of ARS § 25–415:
- The grandparent must stand in loco parentis to the child providing all or some care
- Continued parental custody must be detrimental to the best interests of the child
- No court has entered or approved an order for the child’s custody within the previous year unless there is reason to believe the child’s present environment may endanger the child’s health seriously.
- The child’s legal parents never married, are in the process of separation or divorce, or one of them is deceased
If the petitioner cannot meet any of these provisions, the Family Court must dismiss the custody petition, the Mesa divorce attorney adds.
In any Arizona child custody case, the court’s foremost consideration is the best interests of the child. There is a rebuttable presumption that the child’s best interests favor custody the legal parent.
Under state and federal laws, parents have the right to raise their children as they see fit. There is a presumption in custody cases that fit parents act in the best interests of their children, and a grandparent or other petitioner for custody rights must overcome the presumption that the child’s best interests favor continued parental custody.
To overcome this presumption in Arizona, the petitioner must prove by clear and convincing evidence that continued parental custody would be significantly detrimental to the child. “Clear and convincing” means “highly probable” or “reasonably certain.”
Determinative Factors for Best Interests Findings
Arizona law further explains the factors courts must consider in determining the best interests of the child in custody cases. The court stated that these factors apply equally in cases of custody between parents and between a parent and grandparent or other third party:
- The wishes of the child’s parent(s)
- The child’s wishes
- The child’s interaction and interrelationship with the parent(s), sibling(s), and any other person who might affect the child’s best interest significantly
- The child’s adjustment to home, school, and community
- The mental and physical health of all individuals involved
- The parent more likely to allow the child frequent and meaningful contact with the other parent
- Who has provided primary care of the child
- The nature and extent of coercion or duress by a party to obtain a custody agreement
- Whether either party has been convicted of an act of false reporting of child abuse or neglect
Consult a Mesa Divorce Attorney
The Law Offices of Janice M. Palmer, P.C. offers a full range of family law services to clients in Phoenix and throughout Arizona by assisting them in family court divorce, child custody and visitation, child support, adoption, and paternity cases. Her law firm today represents them through all stages of divorce and other family disputes, at all levels of appeal, and in family court mediation sessions in Maricopa County and northern Arizona to help litigants resolve difficult issues. To learn more about the scope of her services, call 480–820–4771 or toll-free at (888) 352-7725 to arrange a consultation.