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Best Interest Standard in AZ Third Party Child Custody | Hildebrand Law

Tue 11th Oct, 2016 Arizona Child Custody Laws

Arizona law recognizes a parent’s fundamental right to raise his or her children. When a grandparent refuses to return a child to the custodial parent, the parent can file a habeas corpus petition. Can the judge hear arguments that a child staying with the parent is not in the child’s best interests? The Court of Appeals considered this issue in Webb v. Charles, 611 P. 2d 562 (1980).

Facts of the Case

Mr. Webb and Mrs. Webb were not married when they had a child, K. Webb. They married afterward and Mr. Webb acknowledged paternity. The child lived with both parents until his mother died in an auto accident. After her funeral, K. Webb was taken to the home of his maternal grandmother, Mrs. Charles. Mr. Webb requested the return of his child, Mrs. Charles refused. He filed a habeas corpus petition.

The court held a habeas corpus hearing. At the hearing, Mrs. Charles charged that Mr. Webb was not K. Webb’s father and that he was an unfit custodial parent. Mr. Webb argued that the court only had jurisdiction to hear the habeas corpus petition. The court rejected Mr. Webb’s argument. It ordered an investigation into Mr. Webb’s fitness to regain physical custody of his son.

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Subsequently, a response to the habeas corpus petition was filed. It charged that it would be in the best interests of the child if custody were awarded to the grandmother. A commissioner heard the matter. The commissioner found that Mr. Webb was K. Webb’s natural father. He also found that he abused K. Webb, making him a dependent child under Arizona law.

The court gave custody of the child to the Arizona Department of Economic Security. It also instructed the ADES to place the child with the grandmother. It denied the petition for habeas corpus. Mr. Webb appealed.


Best Interests Standard Does Not Apply When a Third Person Seeks Custody of a Child in Arizona.

The Court of Appeals reviewed the issue of the court’s jurisdiction. The commissioner determined he had jurisdiction under A.R.S. Sec. 8-532. It reads as follows:

“The juvenile court shall have exclusive original jurisdiction over petitions to terminate the parent-child relationship when the child involved is present in the state.”

However, the commissioner hearing this case was not a juvenile court judge. He was not appointed to hear the matter by the juvenile division of the superior court. Therefore, he could not exercise subject matter jurisdiction. Mrs. Charles argues that in a habeas corpus hearing about child custody, the critical issue is the child’s best interest.

However, Arizona law discusses what happens if a non-parent seeks custody when a parent has physical custody of the child. It specifies that the “child’s best interest” standard does not apply. Rather, the non-parent must proceed under the juvenile court laws, not the domestic relations laws. The standards for intervention under the juvenile act are much more rigorous than what is found in the domestic relations laws.

In short, the court below had jurisdiction only to hear the habeas corpus petition. Mr. Webb must prevail if he is found to be the child’s natural father and sole surviving parent. The trial court found that he was both.

The Court of Appeals said that it appreciated the lower court’s concern for the best interest of the child. However, it noted that if any action that deprives a parent of the right to raise his child must strictly comply with the laws. The Court suggested that Mrs. Charles use statutory remedies available to her in the juvenile court.

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The Court determined that the trial court had no jurisdiction to hear any other matter than the habeas corpus petition. It reversed and remanded the case to the lower court.

If you have questions about best interest standard in third party child custody in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have over 100 years of combined experience successfully representing clients in child custody and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona child custody or family law case around today.

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