A grandparent’s bond with their grandchild can be a family’s strongest connection until divorce, death, or a family rift suddenly ends contact.
Whether and what legal rights a grandparent retains can be frustrating to discern. Consulting an experienced family law attorney will uncover a grandparent’s rights as well as the limits to them.
Arizona’s Third-Party Visitation Statute, the Governing Law
Arizona law allows grandparents, great-grandparents, and certain other non-parents to petition a court for visitation with a child under specific circumstances. The statute permits a person other than the legal parent to request visitation if the court finds such visits are in the child’s best interests and if other conditions are met. The necessary conditions are:
- One legal parent has died or has been missing at least three months
- The child was born out of wedlock and the parents aren’t married to one another at the time of filing
- The parents’ marriage has been dissolved for at least three months when the grandparent files the petition
- For “in loco parentis” visitation, a divorce or legal separation proceeding involving the legal parents is pending at the time the petition is filed
Arizona law respects parents’ authority to make decisions for their families, so a grandparent seeking visitation must first establish standing under one of these conditions or the petition may be dismissed.
A Child’s Best Interests vs. Parental Rights
Meeting one of the above conditions does not guarantee visitation will be granted. Once a petition is approved for a hearing, the grandparent must prove to the judge that ordering visitation serves the child’s best interests.
The U.S. Supreme Court decided in a case called Troxel v. Granville that parents have a fundamental right to direct their children’s upbringing and courts must defer to a fit parent’s wishes.
In a third-party visitation case, Arizona judges consider:
- The historical relationship between the child and the person seeking visitation
- The adult’s motivation for seeking visitation
- The reasons the child’s parent opposes the visitation
- The amount of visitation time being requested
- Any adverse effect on the child’s normal routine
- If a parent has died, the value of preserving ties to that side of the family
Recent case law has clarified that the standard is high. Arizona requires proof of “significant detriment to the child” only when a non-parent is seeking legal decision-making authority or custody, not simply visitation. Seeking a few hours a month with a grandchild is less demanding than seeking legal custody.
Where and How to File for Third-Party Visitation
If the parents have an existing or prior family court case, such as a divorce, legal separation, or paternity action, the petition for visitation is filed in the same superior court. Otherwise, it is filed in the superior court of the county where the child lives.
How Visitation and Custody Differ
Visitation simply means scheduled time with the child, while “legal decision making” is Arizona’s term for legal custody. In the latter, the custodial adult has the authority to make decisions about the child’s health, education, and welfare.
Gaining visitation rights requires a rigorous process but winning decision-making rights as a non-parent requires proving that the petitioner stands “in loco parentis” and that it would be significantly detrimental to the child to remain with the legal parents.
Finally, grandparents should know that visitation rights aren’t permanent in every case. All visitation rights granted under state law end if the child is adopted or placed for adoption (an exception is if the adopting parent is a stepparent who has married the child’s legal parent).
Legal Guidance for Visitation or Custody Petitions
Petitioning a court for visitation or custody of a grandchild is not easily achieved. The professionals at Webster Family Law are available to walk grandparents through the process that includes evidentiary burdens and constitutional considerations. Call for a consultation today.