You may be wondering, can a family member, friend, or co-worker obtain visitation or legal decision-making of another’s child? In Arizona, a non-parent may petition for court-ordered access to a child. Be mindful, though, that non-parent visitation and third-party rights regarding a child are not without limitation. Although the family law judge may order access in the child’s best interests, a grant of third-party rights (short of adoption) is not the same as constitutionally guaranteed rights enjoyed by the legal parent.
Arizona law requires the judge make numerous, specific findings before any non-parent may be granted court-ordered visitation time or legal decision-making authority over another’s son or daughter. Whether the petitioner is a step-parent, great-grandmother, cousin twice-removed, significant other or domestic partner makes little difference in granting a non-parent visitation. Ordinarily, these cases are fact-driven with interpretation of the law being rather nuanced. Under existing law, with experienced legal representation, obtaining court-ordered access is possible for a non-parent with strong connections to the child.
Non-parents desiring court-ordered access to another’s child should look to ARS § 25-409. That is the controlling statute in Arizona for third-party petitions seeking legal decision-making or visitation.
Is the petitioner a grandmother or grandfather? Learn about special provisions for court-ordered visitation with a grandchild and be sure to read our overview of grandparents’ rights in Arizona law.
In this article, we discuss the scope of third-party rights for those adults who may or may not be related to the child who is the subject of the proceedings. Although grandparents asserting visitation might be better positioned in some cases, non-parent visitations can only be petitioned for access under specified circumstances.
Legal parents have the right to raise their own child as they deem appropriate. And to do so without government interference. The U.S. Supreme Court made that clear in the landmark decision Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000). Parental rights are protected by the U.S. Constitution’s, Fourteenth Amendment Due Process Clause. Furthermore, the parent’s protected child-rearing decisions encompass important medical treatment and healthcare, education, and religious upbringing, along with the myriad day-to-day decisions made while raising a child.
Here is the problem for non-parents. Even when the adult has been serving an important caregiving role since the child was a mere toddler, that person has no right to continue spending time with the child over the parent’s objections. Whatever the parent’s motivation for denying step-parent or grandparent access, which does matter in these cases, it can be very tough to accept and may not be at all in the child’s best interests.
There is a rebuttable presumption that a fit parent acts in his or her child’s best interests. When the legal parent refuses non-parent visitation despite the third-party’s close ties to the child, the non-parent must rebut the presumption to obtain access. The presumption that the legal parent is acting in the child’s best interests can only be rebutted with sufficient clear and convincing evidence to the contrary.
First, the non-parent asks for permission to have visitation or access to the child. Either the parent agrees to allow access to continue in some way, or the non-parent must seek court-ordered visitation. This might entail virtual visitation if the non-parent is a service member based at Fort Huachuca (Army), Davis-Monthan AFB, Luke AFB, or Marine Corps Air Station Yuma, or is deployed overseas.
How does a non-parent prove visitation is in the child’s best interests? In all child custody cases – child placement, legal decision-making, parenting time scheduling, visitation, relocation, and more – it becomes necessary to apply the best interests of the child standard to the facts.
Boiled down, the best interests of the child standard means doing what has the best chance of fostering and encouraging a child to thrive. By doing things that, in the court’s judgment based upon the evidence, will help keep the developing child on solid footing. That is, helping the child stay anchored in terms of happiness, emotional and mental well-being, education, religious upbringing, and security so the minor is best situated to grow up into a healthy, well-balanced adult. In practice, judges may prefer the status quo arrangement when it is working well for a child, instead of introducing new circumstances that could conceivably confuse or pull-the-rug-out from under the child’s feet. Building a case for change takes planning, but still is quite possible under the statute.
When the step-parent has been an important figure in the child’s life, then eliminating contact could be detrimental for the child. By contrast, if the step-parent cannot prove that he or she was ever really involved day-to-day with the child’s care or community, then the judge might deny third-party visitation, especially with the legal parent objecting to it.
The best interests of the child standard necessarily permeates the judge’s determinations. Giving special weight to the legal parents’ opinion of what is in their child’s best interests, the factors to consider are as follows:
1. The historical relationship, if any, between the child and the person seeking visitation.
The judge should apply the facts to each of these factors through the best interests of the child lens. Presenting the case for visitation in a favorable light is something a skilled attorney prepares for. Being prepared includes countering social media evidence that might otherwise paint a less than rosy picture of the petitioner in court. Talk to a lawyer.
Once non-parent visitation is ordered, the non-parent could petition for modified visitation. There is no guarantee that the court will modify orders to increase visitation time or drop the supervision requirement (if there is one). But once the third-party shows how well visitation has progressed, it may be possible to obtain more favorable terms, such increased visits for longer periods with less complicated exchanges.
Someone other than a legal parent, including a grandparent, may petition the court in Arizona for legal decision-making over a child. The petitioner must satisfy several threshold requirements or the judge must summarily dismiss the case without hearing on the merits. This has to be done right.
When a non-parent desires legal decision-making authority, it must be established that:
This process has little similarity to the child custody proceedings between legal parents in a divorce or legal separation. And although this may seem counterintuitive at first, Arizona has no provision allowing a non-parent to seek joint legal decision-making with a legal parent. This is something to discuss with an experienced family lawyer.
One common misconception is the notion that non-parent visitation is the same as parenting time. But they are not the same. Both do involve court-ordered access to the child, but that is about the extent of their common ground.
For aunts and uncles, cousins, step-parents, domestic partners, and other non-parents hoping for court-ordered access to the child they cherished and cared for, non-parent visitation proceedings differ substantially from custody proceedings. In divorce or legal separation cases, the court must award legal decision-making and parenting time, along with child support. To learn what child custody proceedings are all about, take a look at what every Arizona parent should know.
Once a third-party obtains visitation orders, how are those orders enforced? What if the legal parent violates the order by refusing or obstructing access to his or her child? The answer is found in ARS § 25-414. After a hearing on the issue of noncompliance, the court has authority to remedy a parent’s violation in several ways:
Ordinarily, one biological parent gives up his or her legal rights to the child if another adult wants to become a legal parent through Arizona’s adoption process. Adoptive parents may have been grandparents or step-parents, as well as other family members. Adoption obligates the adoptive parent to provide support for the child. Should divorce or legal separation follow the adoption, income from both adoptive and biological parents must be included in child support calculations.
Unless a stepparent has legally adopted the other spouse’s child from a previous marriage or relationship, the step-parent has no right to custody or parenting time with the child in the event of divorce, legal separation, or annulment. That does not mean, however, that visitation would not be in the child’s best interests – that’s a different kettle of fish entirely.
Assuming visitation is in the child’s best interests, then it is up to the step-parent or significant other who has a close relationship with the child to assert a legal right of access in the form of non-parent visitation. Petitioning the court for visitation orders would follow a bona fide attempt at obtaining consent from the child’s legal parent.
A voluntary visitation agreement could mean regularly scheduled access to the child (supervised or unsupervised) depending upon the legal parent’s wishes, the child’s customary activities, and other considerations. Only when the legal parent objects to continued contact or restricts access unreasonably should a non-parent consider petitioning for court-ordered visitation.
The Latin term “in loco parentis” refers to the long-standing tradition of a non-parent taking on the role of the child’s natural or legal parent. Technically, in loco parentis refers to “a person who has been treated as a parent by a child and who has formed a meaningful parental relationship with a child for a substantial period of time.” ARS § 25-401(1). When a step-parent, close family friend, or grandparent stands in loco parentis to the child, that adult is acting in the place of a parent.
Consider this example: After her husband’s death, the mother of a six-month-old son remarried. Her second husband had two high-school age daughters of his own. He raised his wife’s son as his own by co-parenting, providing daily childcare, love and affection, and financial support. After 10 years of marriage, the wife files for divorce in the Maricopa County Superior Court. The husband responds by requesting visitation with his step-son, among other things. He believes he has father’s rights of visitation.
The claim to access under ARS § 25-409 is based upon being the only father figure the boy has ever known. That he has raised the boy as his own for a decade in loco parentis. And that it is in the child’s best interests to maintain a relationship with his step-dad after the divorce. The mother, the only legal parent, objects to any step-parent visitation time with her 10-year-old son.
The circumstances in this example are not unusual or extreme. Similar facts are heard every day in Arizona courtrooms. There is nothing rare about a blended family, where all children are treated equally by both parents as though issue of the marriage. But what happens to the non-parent’s right of access to the child he has raised as his own when spouses divorce or legally separate? What if a spouse’s parental rights are terminated?
Aside from the parent’s death, in general, parental rights to a child terminate either by consent or by court order. A mother or father may voluntarily relinquish legal rights to the child so another adult can legally adopt. For example, the biological father may consent to the mother’s new spouse, the child’s step-father, adopting the child and becoming the legal parent.
Other times, parental rights are stripped from a parent in the best interests of the child because of child abuse or gross neglect. With court-ordered termination of parental rights, the Arizona Department of Child Safety may already have taken steps to remove the child from the parents and a dangerous environment.
Speak with an attorney if either situation is affecting the child that you are concerned about. Although there are options, the specific facts will dictate to large extent which direction is likely to provide the best possible outcome.
Another possible solution for non-parents in appropriate cases is to obtain legal authority over the child through guardianship proceedings. In Arizona, parents may consensually appoint a non-parent as the guardian of their minor child. This is not the same proceeding as non-parent legal decision-making or visitation, but may be a beneficial arrangement for the child, parents, and the third-party.
Consent guardianship is a way for the step-parent or grandparent to obtain specific legal authority over a minor. The parents’ consent to guardianship must be in writing and satisfy the requirements set forth in Arizona probate law. The duly appointed guardian has the same powers and responsibilities as a parent, albeit without an obligation to pay child support from the guardian’s personal funds.
What is a guardian ad litem? Sometimes the judge deems it necessary to appoint an advocate, typically a lawyer, to represent the rights and best interests of the minor child who is the subject of the proceedings. The court may appoint a guardian ad litem, for instance, in proceedings where dependency, parental rights, or permanent guardianship is at issue. See ARS § 14-5101, et seq., of Arizona’s probate code for guardianship proceedings to protect minors and persons under disability as well as their property.
Making the case for court-ordered guardianship, non-parent visitation, or third-party legal decision-making authority in Arizona is not easy. An attorney’s trial experience and advocacy skills are put to the test in these highly-nuanced, fact-driven cases. Talk to a family law attorney who gets results. Who clarifies key issues and develops a trial strategy for obtaining the best possible outcome. Consult a professional you can trust with the Stewart Law Group by calling (602) 548-3400.
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August 8, 2020
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