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

Posted on : October 11, 2016, By:  Chris Hildebrand
Best Interest Standard Does not Apply When a Third Person Seeks Custody of a Child

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

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

Best Interest Standard Does not Apply When a Third Person Seeks Custody of a Child.

Best Interest Standard Does not Apply When a Third Person Seeks Custody of a Child.

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.

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.

Learn About the Child's Best Interests and Custody by a Third Party in Arizona from Our Arizona Licensed Attorney Chris Hildebrand of Hildebrand Law, PC.

Jurisdiction

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.”

Best Interests Standard is Not Applicable When a Third Person Seeks Custody of a Child.

Best Interests Standard is Not Applicable When a Third Person Seeks Custody of a Child.

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.

Disposition

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.

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Scottsdale Arizona Divorce Attorney.

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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.

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