Grandparents Cannot Obtain Custody of a Child From a Parent
Arizona law allows only a parent to commence a child custody hearing. Does that statute prevent a court from awarding custody to a grandparent? Does it depend on whether a parent currently has custody? In the case, Marshall v. Superior Court, 701 P.2d 567 (Ariz. 1985) the Arizona Supreme Court addressed these questions.
Facts of the Case
Mother and Father had a daughter. Both asked for custody, and the court awarded it to Mother. The custody order prevented her from removing the child from Arizona without court permission. It also required her to complete alcohol counseling, which she did in November 1984.
The court gave Father and his mother (“Paternal Grandmother”) visitation rights. In December 1984, Mother asked the court for permission to move to Washington with the child. Father and Paternal Grandmother responded. They asked the court to give them temporary custody of the child instead. Mother argued that the statutes do not authorize grandparent custody of a child if a parent has physical custody.
The court found that this law only applied to who could start a custody proceeding. It ruled that the statute did not limit who could get custody. It also noted evidence that Mother continued to abuse alcohol.
The court gave Paternal Grandmother temporary custody of the child. Mother appealed.
Arizona Law Does Not Authorize Grandparent Custody
Under Arizona law, either parent can commence a custody hearing. A third party may commence a custody hearing if the child is not in a parent’s physical custody. Domestic relations provisions confirm that a third party cannot intervene if the child is in a parent’s physical custody.
The trial court apparently believed that once a parent commenced a custody action, a grandparent could intervene. That court thought that a grandparent could be awarded custody under the “best interest” standard. However, that is not the case. The “best interest” standard does not apply to grandparents or anyone but the parents.
The trial court relied on Gowland v. Martin, 520 P.2d 1172 (1974). It cited this as its authority to transfer custody to a grandparent. However, Gowland was decided before the current version of the law was adopted. That case, therefore, is no longer good law.
The correct position on the law was enunciated in Webb v. Charles, 611 P.2d 562 (1980). There, the Court of Appeals reviewed a case where a maternal grandmother wanted custody. The court said that since the natural father did not relinquish his rights to his son, the grandmother could not seek custody.
The Supreme Court said that the trial court acted in excess of its jurisdiction by transferring child custody to the grandmother. It noted a remedy if the trial court found neither Mother or Father to be fit parents.
Any party may petition the juvenile court to have a child declared a “dependent” child. Under the juvenile code, a “dependent child” is one who is: (a) In need of proper and effective parental care and control and has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control; (b) Destitute or who is not provided with the necessities of life, or who is not provided with a home or suitable place of abode, or whose home is unfit for him by reason of abuse, neglect, cruelty or depravity by either of his parents, his guardian, or other person having his custody or care.
In a dependency action, the issue is whether a parent is exercising appropriate “care or control,” or providing a fit household. The juvenile court is not required to grant custody to a petitioning party. The juvenile court can award custody of a dependent child to any placement in the child’s best interest.
The Arizona Supreme Court reversed the trial court’s award of temporary custody to the grandmother.
Chris Hildebrand wrote this article to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.