Can a Grandparent or Stepparent Be Awarded Custody of a Child in Arizona?
The standards applied to a grandparent or stepparent to be awarded custody of a child are different than the standards applied to a natural parent seeking custody of his or her child. There are three categories of relationships that determine the standard that applies to each.
The first category is a natural parent, the next is a person who the non-biological child has treated as a parent (referred to as In Loco Parentis), and the third is a person who has not been treated as a parent by the child, but seeks custody of the child.
- The standard applied to obtain custody of a biological child is the best interests of the children.
- The standard applied to obtain custody of a non-biological child who has been treated as a parent by the child is that remaining with the biological parent would be significantly detrimental to the child. If a child custody order had been entered within the prior twelve months when a non-biological person seeks to obtain custody of a non-biological child, the standard becomes whether leaving the child with a biological parent places the child in imminent danger of serious harm. If only visitation is sought by someone who is In Loco Parentis to a child, the Arizona Court of Appeals in the case of Egan v. Fridlund-Horne held the trial court must give special weight, among other factors, to the biological parent’s wishes regarding visitation between his or her child and the person who claims In Loco Parentis visitation rights.
- The standard to obtain custody of a child by a non-biological person who has not been treated as a parental figure requires the filing of a Dependency Action in the Juvenile Court and a demonstration of actual abuse and/or neglect of the child. The Arizona Court of Appeals in the cases of Olvera v. Superior Court, Webb v. Charles and Marshall v. Superior Court held that the Juvenile Division of the Court, not the Family Law Division of the Court, had the sole authority to rule on cases granting custody of a child to a non-biological parent who is not In Loco Parentis to the child. That ruling also held the standards to be applied are those of a Dependency Action under the Juvenile Statutes in the Juvenile Division of the Court and not the Family Law Statutes.
The Arizona Court of Appeals in the Lambertus v. The Honorable Gerald Porter case addressed the issue of whether the court had the authority to issue temporary orders granting grandparents visitation during the pendency of a case. The appeals court concluded that although the statute did not specify the court could grant grandparents visitation in a temporary order, the trial court had the inherent authority to do so.
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