GRANDPARENTS’ RIGHTS IN ARIZONA

“Do grandparents have visitation or legal decision-making rights rights in Arizona?” It’s a question that we hear often. And the answer is: “Yes.” There has never been a time when grandparents were more important to the well-being of children than today. Grandparents have always been intimately involved in the lives of their grandchildren, and today they are raising grandchildren in greater numbers than ever before. There are many reasons for grandparents having to step into the shoes of a parent. The list includes teen pregnancy, substance abuse, incarceration, financial difficulties, mental illness, and other problems. Even under the best of circumstances where the parents are capable caregivers, the presence of grandparents in the children’s lives brings an added sense of love and stability.

But these are complicated times, and our law firm receives calls just about every day from loving grandparents who are being excluded from their grandchildren’s lives and want to learn about grandparent rights. It could be because a parent is angry and seeks to punish the grandparent. It could be because a parent who is on drugs or was missing now returns and insists on taking the children back. Maybe it’s because a parent has remarried and the new husband or wife feels threatened that the children have a relationship with the former spouse’s parents. Or it might be that one of the parents has died, and the surviving parent wishes to move on and put the deceased parent and his family in the past. There are a myriad of reasons why loving grandparents may be cut out of the picture and left in the cold. It’s truly heartbreaking for the grandparents. But, in the long run, it is the children who suffer the most.

In Arizona, grandparents (and other third-parties with a close relationship to the children, such as step-parents and others) have legal rights. Arizona Revised Statutes, Section 25-409 is the Grandparent Visitation, Grandparent Custody (now referred to as “legal decision-making authority), and Third Party Visitation / Custody statute.  The statute lists the circumstances which would enable a grandparent or other non-parent to file a petition for visitation or custody; as well as the factors that the Court must consider in determining whether to grant the petition.

This is not an easy process. In making its decision, the Court must weigh the constitutional right of parents to raise their children as they see fit – against the benefit to the child of maintaining an ongoing relationship with a grandparent or other non-parent that the child loves, and with whom he or she has a close bond. The Court is required to give “special weight” to the parent’s decision. But if the judge feels that it would be in the child’s best interests to maintain a relationship with the grandparents (or other non-parents), and the child’s interests would be substantially harmed if that relationship were severed, then the Court has the authority to order visitation to take place. And if it is determined that all of the factors listed in A.R.S. §25-409(A) are present and it would be “significantly detrimental” to the child to remain or be placed in the care of either legal parent, then the Court can order that the grandparents (or other non-parent) shall have legal decision-making authority (custody) of the child. A strong, experienced attorney can be a tremendous help to someone who is trying to obtain grandparent visitation or custody.

If you are a grandparent or a non-parent who has been (or might be) unfairly cut out of your grandchild’s life and you would like to learn more about how to assert your legal rights, please do not hesitate to give us a call. We’d be happy to talk to you.

 

Our attorneys, Gary Frank and Hanna Juncaj, represent many grandparents and other non-parents in Arizona courtrooms. They are strong litigators and compassionate counselors.  If you are in need of a consultation regarding how to assert your grandparents’ or non-parents’ rights, please call us today at 602-383-3610; or contact us by email through our website at www.garyfranklaw.com.

 

 

A GRANDPARENT CUSTODY CASE INVOLVING TWO STATES – WHO HAS JURISDICTION?

I was recently contacted by a grandparent who had the following question:  “I raised my grandchildren for several years.  My daughter went through treatment for drug abuse and later took the children back.  However, her addiction has returned and I am afraid that my grandchildren are now at risk.  She’s in California and I’m in Arizona.  I need to get custody of my grandchildren.  How can I do this from another state?”

This scenario presents a complicated legal issue involving not only a grandparent’s custody matter, but also a potential battle between states over which state has the jurisdiction (i.e., the power) to make the custody decision.

Grandparents in Arizona, and in other states, now have legal rights, including the right to visitation — and even the right to be awarded custody of a grandchild, under certain circumstances.  Arizona’s grandparent-rights law is contained in Arizona Revised Statutes, Section 24-409.  For a custody petition to be considered, the grandparents must stand “in loco parentis” to the child.  In other words, they must be able to show that they “stood in the shoes” of a parent by caring for the child for a substantial period of time.  (It may be sufficient to show that the child resided in the grandparents’ home with a parent, and the grandparents helped care for the child.)

Custody cases that involve two or more states are governed by a set of laws known as the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA).  Nearly every state in the U.S. has adopted the UCCJEA.  The law provides uniformity and helps the competing courts determine which state will preside over a custody dispute.  Under the UCCJEA, the state where the child has lived for the past six months prior to a court action being initiated is considered to be the “Home State” of the child.  Generally (but not always) the child’s “Home State” will be the state that has “jurisdiction,” and it is where the custody matter will be litigated.  However, the Court considers a number of factors before determining jurisdiction, including which state has the “most significant connection” with the child (i.e., where schools, doctors, family members and friends who are familiar with the child’s needs, etc., are located).  The Court also considers whether substantial evidence is available in the state concerning the child’s care, protection, training and personal relationships.

The UCCJEA provides that a state can accept temporary emergency jurisdiction if the child is present in that state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to mistreatment or abuse.

Under the UCCJEA, a state can choose to decline jurisdiction where it believe that, under the circumstances (and considering the statutory factors), another state is the more appropriate forum.

The bottom line is that grandparents do have rights.  And ultimately, in making a custody decision, a judge is guided by what she/he believes will be the best interests of the children.

In a complicated situation involving a potential conflict between two states over custody jurisdiction, it helps to have a strong, experienced attorney on your side.

This information is provided for general purposes only, and does not create an attorney-client relationship between the author and the reader.  Every Family Court case is unique.  If you have a matter that appears similar to any of the scenarios that you read in this blog, you should be aware that: (1) even a slight difference in a factual situation can lead to a vastly different result; and (2) the laws are constantly changing and new laws are being enacted; thus, you should not rely on any particular statement of the law in this blog, since the law may be different today than it was when the blog post was written.

Our attorney, Gary Frank, is a grandparents’ rights advocate.  In addition to being a litigation attorney and a professional Family Law mediator, Mr. Frank has acted in the capacity of a Judge Pro Tem in the Maricopa County Superior Court.  This has given him an understanding of the inner-workings of the court, and a unique perspective  that most attorneys lack.  If you are in need of a consultation regarding any area of Family Law, please do not hesitate to give our office a call today at 602-383-3610; or feel free to contact us through our web site at www.garyfranklaw.com; or by email at gary.frank@azbar.org.   We look forward to hearing from you.

GRANDPARENTS’ RIGHTS – Are You Being Deprived of Visitation With Your Grandchildren?

There is nothing more heartbreaking than a grandparent who is not allowed to have contact with the grandchildren, especially during the holidays.  The relationship between a child and his or her grandparent is a special kind of bond, one that cannot be replaced.  For a grandparent to be unfairly “cut out of the picture” can be devastating for both the grandparent and the child. 
Arizona law provides that grandparents do have a legal right to visitation with their grandchildren under certain circumstances.  Arizona Revised Statutes, Section 25-409 spells out the criteria that the courts use to determine whether grandparent visitation would be appropriate in a particular case; and the appellate courts have published cases which interpret the statute and provide guidance to help the trial judge make a decision.
There is a presumption that a fit parent’s decision to deny or limit visitation was made in the child’s best interests.  However, that presumption can be rebutted by evidence to the contrary.
A.R.S., Section 25-409(A) provides that “The superior court may grant the grandparents of the child reasonable visitation rights . . . on a finding that the visitation rights would be in the best interests of the child and any of the following is true:
1.                  The marriage of the parents of the child has been dissolved for at least three months.
2.                  A parent of the child has been deceased or has been missing for at least three months . . .
3.                  The child was born out of wedlock.
Section (C) of the statute provides that “In determining the child’s best interests the court shall consider all relevant factors, including:
1.                  The historical relationship, if any, between the child and person seeking visitation.
2.                  The motivation of the requesting party in seeking visitation.
3.                  The motivation of the person denying visitation.
4.                  The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5.                  If one or both of the child’s parents are dead, the benefit in maintaining an extended family relationship.
To obtain court-ordered visitation over the objection of a parent, the grandparent must fall within one of the three categories listed in Section A of the statute, above; and the grandparent must be able to prove that visitation would be in the child’s best interests.  If the grandparent can demonstrate that he/she has maintained regular contact and has a loving and appropriate relationship with the child, then the prospect of obtaining visitation is greatly enhanced.  When one of the parents has died, the Court will give special consideration to protecting the relationship between the child and the deceased parent’s family. 
The Arizona courts have ruled that while a trial judge has considerable discretion in shaping a grandparent visitation order, the court is not free to simply second-guess the decision of a fit parent as to visitation rights.  Where a parent has agreed to allow some reasonable contact between the grandparents and the children – even if it is not as much time as the grandparents would like – the courts will usually not interfere with the parent’s decision.  On the other hand, where a parent refuses to allow any contact at all, the Court has the power to step in and order the parent to let the grandparents spend time with their grandchildren on a regularly scheduled basis.
These are difficult and complex cases.   If you are in need of a grandparents’ rights attorney – or if you are a parent who believes that contact with a grandparent would be potentially harmful to your child – then do not hesitate to contact the law firm of Gary J. Frank P.C. for a consultation.  You can reach us by telephone at 602-383-3610 or by email through our website at http://www.garyfranklaw.com/.   Contact us today.
    

GRANDPARENTS HAVE A LEGAL RIGHT TO VISITATION UNDER ARIZONA LAW

The United States Supreme Court has held that parents have a fundamental constitutional right to control child rearing. Under Arizona law, a fit parent is presumed to be able to make decisions which are in his/her child’s best interests, and the courts will stay out of the decision-making unless it is clear that the parents’ decisions could be damaging to the child.
However, Arizona Revised Statutes, Section 25–409 gives a judge the right to intervene and order visitation between a child and her/his grandparents (or great-grandparents) — even over the objection of the parents — so long as the grandparents can meet the standards delineated in the statute. Basically, a grandparent must be able to prove that visitation rights would be in the best interests of the child and that any of the following is true:
1. The marriage of the parents of the child has been dissolved for at least three months;
2. A parent of the child has been deceased or has been missing for at least three months (i.e., the parents location has not been determined and the parent has been reported as missing to a law enforcement agency); or
3. The child was born out of wedlock.
In determining the child’s best interests the court shall consider all relevant factors, including:
a.  The historical relationship, if any, between the child and the person seeking visitation;
b.  The motivation of the requesting party in seeking visitation;
c.  The motivation of the person denying visitation;
d.  The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities; and
e.  If one or both of the child’s parents are dead, the benefit in maintaining an extended family relationship.
If you are being unfairly deprived of contact with your grandchild and would like to learn more about your rights, then please do not hesitate to call our office for a consultation.
Gary Frank is a Family Law Attorney with over thirty years of experience in dealing with grandparents visitation / custody matters, and advocating for the rights of children.  You can reach us by telephone (602-383-3610), email (gary.frank@azbar.org), or through out website (http://www.garyfranklaw.com/).  We’d be happy to hear from you.