When grandparents are denied access to their grandchildren, it can be heartbreaking. However, grandparents no longer need to stand helplessly on the sidelines. Arizona law provides that grandparents, and great-grandparents, are entitled to visitation, or even custody of their grandchildren under appropriate circumstances.
Arizona Revised Statutes, Section 25-409 provides that the Superior Court may grant a grandparent, or great-grandparent, reasonable visitation with a child if the judge believes that such contact would be in the child’s best interests, and any one of the following applies: (1) the child’s parents have been divorced for at least three months; (2) a parent of the child has been deceased or has been missing for at least three months; or (3) the child was born out of wedlock.
In determining whether grandparent visitation is in the child’s best interests, the court will consider all relevant factors, including: (1) the relationship between the child and the 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 whether it will have an adverse impact on the child’s customary activities; and (5) the benefit in maintaining an extended family relationship, if one or both of the child’s parents are deceased.
If logistically possible and appropriate, the court will order the visitation by a grandparent to take place when the child is scheduled to reside or spend time with the parent.
Under certain circumstances, grandparents may find it necessary to seek custody of their grandchildren. Arizona law provides that where grandparents have and “stood in the shoes” of the parent, they may be entitled to obtain custody. This is called “In loco parentis” custody. “In loco parentis” means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.
Arizona Statute – A.R.S 25-409 provides that to obtain custody, a grandparent must show that all of the following are true:
- The person filing the petition stands in loco parentis to the child.
- It would be significantly detrimental to the child to remain or be placed in the custody of either of the child’s living legal parents who wish to retain or obtain custody.
- A court of competent jurisdiction has not entered or approved an order concerning the child’s custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.
- One of the following applies:
- One of the legal parents is deceased.
- The child’s legal parents are not married to each other at the time the petition is filed.
- There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
Under Arizona law, there is a rebuttable presumption that it is in the child’s best interest to award custody to a legal parent. This is because our legislature has determined that, under normal circumstances, a child’s physical, psychological, and emotional needs are best served by being reared by his or her parent. However, grandparents can overcome this presumption if they demonstrate, by clear and convincing evidence, that awarding custody to a legal parent is not in the child’s best interests.
At the law firm of Gary J. Frank P.C., our attorneys are committed and experienced Grandparents’ Rights advocates. We can provide the information and guidance you need to assert your legal rights. To learn more about “Grandparents Rights,” contact us and schedule an appointment today.