Arizonans have limited rights to grandparent visitation with their grandchildren and that can be a wonderful thing. Many grandparents are at the center of their grandkids’ daily routines and loving every minute of it. But others worry about their grandchildren’s welfare because of an unstable, unsafe home environment. Some clients are very concerned about what will happen after a parent passes away, is imprisoned, or has parental rights terminated.
These cases have one common characteristic. Grandparents and great-grandparents who love their grandchildren and want to maintain close ties with them, no matter what has happened in the family. For Arizonans seeking to enforce grandparents’ visitation rights, this is the essential elder law issue of their lives.
Seemingly always on call, grandparents are dependable, unpaid caregivers and babysitters. They provide financial and emotional support, too. In some families, the grandparents have a grandbaby living with them, although the child has not been legally placed in their custody. Most want permanent orders to stabilize the child’s situation. Arizona law recognizes how maintaining the grande familia is in the best interests of the child. In reality, though, the grandparents’ relationship with their grandchild is usually beneficial to the well-being of the whole family.
The Arizona grandparents’ rights statute (discussed in detail below) makes no distinction between maternal and paternal grandparents. Nor does the law prefer one generation of grandparents over another. So long as access is in the best interests of the child, the greater the grandparent the better!
There could be desperate circumstances that make a grandparent want to rescue a grandchild. But when a grandparent desires shared custody with a legal parent, as attorneys we sometimes have to deliver disappointing news. Current Arizona law does not provide for joint legal decision-making between a legal parent and a non-parent. Unless the grandparent or non-parent legally adopts the child, there is no right to shared legal decision-making.
In the case of Thomas v. Thomas, 49 P3d 306 (Ariz. Ct. App. 2002), the Arizona Court of Appeals held that joint legal custody, as legal decision-making was previously known, could not be ordered between a non-parent and the legal parent. (When Thomas was decided, the relevant statute was ARS § 25-415, but today it’s ARS § 25-409.)
Joint legal decision-making with a legal parent is not possible, but there are other alternatives worthy of discussion with an experienced grandparents’ rights attorney. The good news? Grandparents may seek access and establish visitation rights (discussed later).
Understand that a grandparent may seek legal decision-making as a non-parent who stands in loco parentis to the child. That is not a grandparent visitation rights case, but a child custody case. The facts will determine whether legal decision-making is even an option, which is why it’s so important to obtain specific legal advice before committing to a particular legal strategy.
If both parents are living, then a third-party could seek custody. Under what circumstance? Because the child’s mother and father are unwilling or unable to care for the child. Placing the minor with a third party who is a close family member may be possible when legal parents are unfit to care for their child.
When the child’s only parent has had his or her parental rights terminated, for instance, a grandparent who has taken on parental responsibilities may petition the family court for orders. Setting aside any blood relation (or consanguinity), in that situation the petitioner is a third-party acting in place of a parent (or standing in loco parentis). The controlling statute is ARS § 25-409 which delineates:
What is child placement about? Generally, placement of a child refers to foster care or guardianship in a situation where the child is in child protective services custody. That child may be placed with a relative for kinship foster care. Although beyond the scope of this article, an experienced lawyer with SLG can advise grandparents and other kin on how to approach this challenging situation.
With a request for custody or placement, no special provisions favor grandparents over other non-parents. But if a grandparent also stands in loco parentis to the child, as supported by the evidence, then petitioning for legal decision-making authority is possible.
Before the court will hear a non-parent’s request for legal decision-making or placement, ARS § 25-409(A) requires that all of the following must be true:
“1. The person filing the petition stands in loco parentis to the child.
(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.”
To learn about third-party petitions for custody and what it means to be “in loco parentis” to a child, read our discussion on how non-parents seek access or legal decision-making authority in Arizona.
When the only legal parent is deceased, adopting the grandchild may be an alternative worth further inquiry. Every family has unique circumstances. Consult a grandparent’s rights attorney to determine what might be best under the specific circumstances: Court-ordered grandparent visitation, legal decision-making authority for a non-parent, child placement, or other.
Some grandparents consult a lawyer because the child’s welfare is being endangered. In such a situation, proceedings focus on removing a child from abusive or neglectful parents first. When the child is living in an unsafe, unhealthy environment where there may be drug and alcohol abuse along with domestic violence, grandparents may try to step-in and protect their grandchild. It happens. Having to discuss an adult child’s parental failings is difficult, but concern for a grandchild’s safety takes precedence. Worried grandparents may ask an attorney to help them do “whatever it takes” to remove the grandchild from a dangerous home environment.
Some other grandparents have been refused visitation by the legal parent. Or they are frustrated because visitation is strictly supervised for short periods of time, perhaps only for a few hours a month. Be mindful that there are limitations on grandparents’ rights and protections on well-established parents’ rights in Arizona’s constitution and the U.S. Constitution.
At a time when grandparents’ rights legislation had gained traction in most jurisdictions, the U.S. Supreme Court threw cold water on over-zealous, albeit well-meaning, state legislation. Decided in 2000, the landmark decision on parents’ rights versus grandparents’ rights was Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000). Take a look.
In Washington state, the unmarried parents of two girls allowed paternal grandparents frequent access to the children. The parents broke-up in 1991. The father moved in with his folks and brought his daughters there for weekend grandparent visitation. The father committed suicide in 1993.
Initially, the children’s mother allowed regular grandparent visitation with the children. But after a few months, she decided to limit grandparenting to a brief visit once a month. The grandparents petitioned to claim visitation rights. They were awarded grandparent visitation of one weekend per month, one week in the summer, and four hours on each grandparent’s birthday. The mother appealed and, shortly thereafter, married a man with six children. The new husband adopted both girls, making him a legal parent with rights equal to the mother.
This grandparents’ rights case wound its way up to the Washington Supreme Court. Then the U.S. Supreme Court granted certiorari and heard arguments. This is the take-away from the high court’s Troxel decision:
After Troxel, the grandparent as a non-parent has no right to interfere with or obstruct a fit parent’s fundamental liberty interest in raising the child as he or she chooses. Is there an exception? Yes. When the parent’s decision puts the child in danger of substantial harm as with child abuse or neglect. (See ARS § 8-201.)
Thus far, Arizona’s grandparents’ rights statute has withstood constitutional challenge. After Troxel, grandparents and other non-parents may claim certain rights, but those rights are not without limitation. When fit parents are married to each other and the family is intact, the fundamental right to rear their children as they deem appropriate means they have the right to control visitation without judicial interference. Special weight must be accorded parental decisions.
With regard to a non-parent’s request for legal decision-making authority, the legal presumption that a parent acts in his or her child’s best interests can be rebutted with clear and convincing evidence. By way of example only, the parent’s persistent illegal drug use, addiction, or history of placing the child in danger could be admissible evidence supporting an award of legal decision-making custody to a non-parent. This is ARS § 25-409(B) on legal decision-making custody:
“B. [I]t 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.”
In keeping with Troxel, the Arizona grandparents’ visitation rights law requires the judge give special weight to the legal parents’ opinions and decisions regarding what is in their child’s best interests. Specifically, that the court should consider all relevant factors including:
“1. The historical relationship, if any, between the child and the person seeking visitation.
But for one exception, the child’s adoption or placement for adoption causes automatic termination of visitation rights in Arizona law. The exception? When the child is “adopted by the spouse of a natural parent after the natural parent remarries.” ARS § 25-409(H). Importantly, grandparent visitation may be reinstated in the event the child is removed from placement for adoption.
Here’s one easy question to answer: “Through whom do grandparent rights flow?” Claiming right of access through the legal parent is one small piece of the visitation rights puzzle, but it is a necessary determination. If a mother is the legal parent who has parenting time or the child living with her, for example, then the maternal grandparents’ visitation rights flow through her. Absent objection, the court should order grandparent visitation under those circumstances. See ARS § 25-409(F). When the legal parent has supervised parenting time, her parents would most likely be permitted to share that time with the children, too.
Clients rely on their grandparent’s rights attorneys to address the jurisdictional aspects of the case. However, clients should know a few things about filing with the court. Assuming no divorce or custody case is already pending, the grandparent visitation petition is ordinarily filed with the court sitting in the child’s home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in Arizona and other laws.
To establish home state jurisdiction, the minor child must have resided in Arizona for at least six months before the petition gets filed. Additionally:
With a child living with parents in Scottsdale for the last six months, for example, the papers should be filed with the Clerk of the Superior Court in and for Maricopa County. (Is this an emergency? Talk to your lawyer about exigent circumstances and emergency jurisdiction.)
Was or is there a divorce, legal separation, annulment, or child custody case already filed or pending? If yes, then the petition for grandparent visitation is filed in the same proceeding with the same case number. In that way, the matter comes before the same judge assigned to the main family lawsuit. This is for purposes of efficiency, evidence, fact finding, best interests of the child determination, and the like. ARS § 25-409(G) requires this:
“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. …”
Temporary grandparent visitation orders are possible, too, when necessary to the court’s exercise of jurisdiction over the case. Temporary orders may become permanent orders, although Arizona courts have been somewhat inconsistent on this issue. Discuss the availability of interim orders given the circumstances with your family attorney.
As one might expect, there is no normal visitation schedule. If the judge determines that visitation is in the child’s best interests and all ARS § 25-409 requirements are met, then expect reasonable grandparent visitation to be ordered. The next question is, “What is reasonable grandparent visitation time?”
Scheduling visitation means balancing the child’s best interests in spending time with grandparents on the one hand, with respecting the parents’ right to make child-rearing decisions on the other hand. The grandparents’ petition should propose a visitation plan as well. If in the child’s best interests and is not objected to, then the court may order it. However, courts often leave visitation scheduling for parents to work out, giving them opportunity to reach agreement on what “reasonable” visitation means for their family. To arrive at a good plan for grandparent visitation, parents should consider everyone’s schedules and remain flexible.
Parents may also mediate the issue of grandparent-time scheduling with other child custody matters. The parenting plan in the parents’ divorce, legal separation, or child custody case could specify a schedule for grandparent visitation time and include:
Learn more about mediation as alternative dispute resolution, or ADR, in Arizona from our discussion on how to avoid trial with custody mediation.
Supervised grandparent visitation could be ordered if necessary for the child’s safety or well-being. Supervised visitation may be ordered because there are concerns of possible physical or sexual abuse, emotional harm to the child, substance abuse, or mental illness, among other things. The adult charged with supervising interaction between grandparent and grandchild could be hired through an approved agency, but it could also be someone chosen by the parents by agreement. For example, by appointing a parent’s sibling or a trusted friend of the family from church. Assuming visitation goes well, the grandparent may later request modified orders for less-restrictive unsupervised visitation. Most would agree, however, that supervised visitation with a grandchild is far better than no visitation.
Knowing that the judge must give some special weight to a legal parent’s opinion on visitation, grandparents need to be ready to prove their case. Because these matters can rise or fall on the facts, consult a lawyer and develop a legal strategy. The family law judge has authority to grant grandparent visitation when one or more of the following is true:
“1. For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months.
Even when the evidence favorably supports the case for visitation, the judge has discretion to order it or not and, if ordered, to what extent. Presenting a strong case with an attorney familiar with the judge’s idiosyncrasies could be what it takes to obtain desired orders for more frequent, unsupervised scheduling.
Being a grandparent is the greatest job in the world, but only if access to a grandson or granddaughter can be reasonably maintained. We can help.
For more information on Family Law and Child Custody in Arizona click to review the following Articles and Resources: