Child Custody Granted to a Grandparent or Stepparent
We want to provide answers to the question of can a grandparent or stepparent be awarded custody of a child in AZ. 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.
Grandparents Cannot Obtain Custody of a Child From a Parent in Arizona
Arizona law allows only a parent to commence a child custody hearing. Does that statute prevent a court from awarding grandparental custody? 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 child 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. The mother argued that the statutes do not authorize grandparental 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 Grandparental 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.
Alternate Remedy
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 place in the child’s best interest.
Disposition
The Arizona Supreme Court reversed the trial court’s award of temporary custody to the grandmother.
If you have questions about can a grandparent or stepparent be awarded custody of a child in Arizona, 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 child custody or family law case around today.
More Articles About Child Custody in Arizona
- ARIZONA CHILD CUSTODY LAWS
- DIVORCE AND GRANDPARENTS VISITATION RIGHTS IN ARIZONA
- CHANGING A CHILD’S LAST NAME IN ARIZONA
- PARENT INFORMATION PROGRAM CLASS IN ARIZONA
- GRANDPARENTS RIGHTS IN ARIZONA
- MOVING CHILDREN MANY TIMES IN ARIZONA
- PARENTAL ALIENATION IN ARIZONA
- JOINT CUSTODY AND SCHOOL DECISIONS IN ARIZONA
- DO COURTS FAVOR MOTHERS IN CUSTODY BATTLES IN ARIZONA
- ENFORCE VISITATION NON-CUSTODIAL PARENT IN ARIZONA
- DELEGATION OF CHILD CUSTODY DECISIONS TO AN EXPERT IN ARIZONA
- PRESUMPTION OF EQUAL PARENTING TIME IN ARIZONA
- HOW TO GET SOLE CUSTODY IN ARIZONA
- HOW TO ENFORCE PARENTING TIME IN ARIZONA
- CO-PARENTING AFTER DIVORCE IN ARIZONA
- HOW TO CHANGE A CHILD’S LAST NAME IN ARIZONA
- GETTING EMERGENCY CHILD CUSTODY ORDERS IN ARIZONA
- HOW DO YOU MODIFY VISITATION OR PARENTING TIME IN ARIZONA
- WHAT VISITATION OR PARENTING TIME SCHEDULES DO JUDGES ORDER IN ARIZONA
- WHAT IS A CHILD CUSTODY EVALUATION IN ARIZONA
- PREPARE FOR A CHILD CUSTODY EVALUATION IN ARIZONA
- CAN A GRANDPARENT OR STEPPARENT BE AWARDED CUSTODY OF A CHILD IN AZ
- CONTESTING RELOCATION OF A CHILD WHEN YOU DO NOT LIVE IN ARIZONA
- WHO HAS CUSTODY OF CHILDREN WHEN A DIVORCE IS FILED IN ARIZONA
- WHAT ARE THE CHILD CUSTODY FACTORS IN ARIZONA
- WHAT IT JOINT LEGAL CUSTODY OR JOINT DECISION MAKING IN ARIZONA
- ARE MOTHERS FAVORED CHILD CUSTODY CASES IN ARIZONA
- WHAT IS A PARENTING COORDINATOR IN AN ARIZONA CHILD CUSTODY CASE
- CAN A PARENT WITH SOLE CUSTODY LIMIT ACCESS TO A CHILD’S MEDICAL RECORDS IN ARIZONA
- WHAT HAPPENS IF A PARENT WANTS TO MOVE OUT OF STATE WITH A CHILD IN ARIZONA
- PARENTING TIME AFTER LOSING AN ORDER OF PROTECTION HEARING IN ARIZONA
- WHO IS THE BEST CHILD CUSTODY LAWYER IN ARIZONA
- ARIZONA CHILD CUSTODY STATUTES
- ARIZONA UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT STATUTES
- TEMPORARY CHILD CUSTODY IN ARIZONA
- ADOPTION ATTORNEYS IN ARIZONA
- RESTRICTIONS IN ARIZONA ON TAKING CHILDREN TO ANOTHER COUNTRY
- WITHHOLDING CHILD FROM CUSTODIAL PARENT IN ARIZONA
- AFFIDAVIT IN A CHILD CUSTODY CASE IN ARIZONA
- BEST INTEREST ATTORNEY IN ARIZONA
- LATE OBJECTION TO CHILD RELOCATION NOTICE IN ARIZONA
- RAISING ALLEGATIONS THAT WERE RAISED IN A PRIOR ARIZONA CHILD CUSTODY CASE
- TEMPORARY VISITATION ORDER FOR GRANDPARENTS IN ARIZONA
- WHEN THE CHILD RELOCATION STATUTE DOES NOT APPLY IN ARIZONA
- SIGNIFICANT DOMESTIC VIOLENCE AND SOLE CUSTODY IN ARIZONA
- HOW TO CHOOSE A GUARDIAN FOR YOUR CHILD IN ARIZONA
- MULTI-STATE CHILD CUSTODY JURISDICTION IN ARIZONA
- SCHOOL CHOICE CHILD CUSTODY IN ARIZONA
- TEMPORARY ORDERS FOR GRANDPARENTS VISITATION IN ARIZONA
- CAN A STEPPARENT BE HELD IN CONTEMPT IN ARIZONA
- UNAUTHORIZED RELOCATION OF CHILDREN IN ARIZONA
- GRANDPARENTS CANNOT PREVENT CHILD RELOCATION IN ARIZONA
- WHEN ARIZONA CHILD RELOCATION STATUTE IN ARIZONA DOES NOT APPLY
- ARIZONA CHILD RELOCATION LAWS
- INTERNATIONAL CHILD ABDUCTION IN ARIZONA
- UCCJEA CHILD CUSTODY JURISDICTION IN ARIZONA
- MENTAL HEALTH RECORDS IN CHILD CUSTODY CASES IN ARIZONA
- FAILING TO ALLEGE CHANGED CIRCUMSTANCES TO MODIFY CHILD CUSTODY IN ARIZONA
- FALSE ALLEGATIONS OF CHILD ABUSE IN A CHILD CUSTODY CASE IN ARIZONA
- CHILD CUSTODY AND NARCISSISTIC A PARENT IN ARIZONA
- CHANGE CIRCUMSTANCES TO CHANGE CUSTODY IN ARIZONA
- EFFECT OF MUTUAL DOMESTIC VIOLENCE ON CHILD CUSTODY IN ARIZONA
- PARENTING TIME WITH A NON-BIOLOGICAL CHILD IN ARIZONA
- DENIAL OF MORE TIME IN CHILD CUSTODY CASE IN ARIZONA
- WHEN A CHILD CUSTODY HEARING IS REQUIRED IN ARIZONA
- HOSTILITY BASIS TO MODIFY CHILD CUSTODY IN ARIZONA
- MEANING OF HOME STATE IN ARIZONA
- USE OF THE UCCJEA IN DEPENDENCY CASES IN ARIZONA
- EFFECT OF DENIAL OF VISITATION ON CHILD SUPPORT PAYMENTS IN ARIZONA
- CUSTODY DECISIONS CANNOT BE DELEGATED TO AN EXPERT
- THIRD-PARTY AND EMERGENCY CHILD CUSTODY IN ARIZONA
- STEPPARENT IN LOCO PARENTIS CHILD VISITATION IN ARIZONA
- STEPPARENTS CANNOT OBTAIN CHILD CUSTODY IN ARIZONA
- BEST INTEREST STANDARD FOR THIRD-PARTY CHILD CUSTODY IN ARIZONA
- TEMPORARY CHILD CUSTODY IN AN ARIZONA DIVORCE DECREE
- MODIFICATION OF CUSTODY AND CHILD ABDUCTION IN ARIZONA
- VISITATION RIGHTS AND IN LOCO PARENTIS STANDING IN ARIZONA
- HOW DIVORCE AFFECTS CHILDREN IN ARIZONA
- PARENTING PLANS COURTS USE IN ARIZONA
- PROTECTING CHILDREN FROM A HOSTILE PARENT IN ARIZONA
- SUITABLE NOTICE FOR CHILD CUSTODY HEARING IN ARIZONA
- HOW TO DEAL WITH A HOSTILE PARENT IN ARIZONA
- JURISDICTION OVER CHILD RESIDING OUTSIDE ARIZONA
- HABEAS CORPUS IN AN ARIZONA CHILD CUSTODY CASE
- NOTICE OF HEARING IN AN ARIZONA CHILD CUSTODY CASE
- STANDARD OF CARE TO REPORT CHILD ABUSE IN ARIZONA
- APPEALING DEPENDENCY ORDERS IN ARIZONA
- MODIFICATION OF PARENTING TIME CHANGE WHEN KIDS CHANGE SCHOOLS
- STANDARD FOR TERMINATION OF PARENTAL RIGHTS IN ARIZONA
- A MINOR’S RIGHT TO BE HEARD IN A CHILD CUSTODY CASE IN ARIZONA
- CAN THE COURT APPOINT A GUARDIAN FOR A CHILD IN ARIZONA
- EXCLUDING TESTIMONY IN A CHILD CUSTODY CASE IN ARIZONA
- SUPERVISED PARENTING TIME IN ARIZONA
- DOMESTIC VIOLENCE AND PARENTING TIME IN ARIZONA
- JURISDICTION FOR A DEPENDENCY CASE IN ARIZONA
- CHANGING A CHILD’S LAST NAME IN ARIZONA
- SAME-SEX MARRIAGE AND CHILD CUSTODY IN ARIZONA
- JURISDICTION TO PETITION FOR VISITATION IN ARIZONA
- NO ALCOHOL DURING PARENTING TIME IN ARIZONA
- FAILING TO APPEAR FOR CHILD CUSTODY HEARING IN ARIZONA
- ONE SPOUSE ADOPTS A CHILD IN ARIZONA
- BASICS OF CHILD ABUSE IN ARIZONA
- CHILD ABUSE AND CHILD CUSTODY IN ARIZONA
- FATHERS RIGHTS IN ARIZONA
- PREPARE FOR A CHILD CUSTODY CASE IN ARIZONA
- CO-PARENTING WITH YOUR EX IN ARIZONA
- PETITION TO MODIFY CHILD SUPPORT AND SOLE CUSTODY IN ARIZONA
- DUE PROCESS IN A CHILD CUSTODY HEARING IN ARIZONA
- SOLE LEGAL CUSTODY OVER MEDICAL DECISIONS FOR A CHILD IN ARIZONA
- THIRD-PARTY VISITATION WITH A CHILD IN ARIZONA
- RIGHT OF FIRST REFUSAL IN ARIZONA
- FINAL DECISION-MAKING AUTHORITY OVER A CHILD IN ARIZONA
- CAN A BEST INTEREST ATTORNEY TESTIFY AT TRIAL IN ARIZONA
- MODIFY A SUPERVISED VISITATION ORDER IN ARIZONA
- CALCULATING DISTANCE FOR A CHILD RELOCATION IN ARIZONA
- DISMISSING PETITION TO MODIFY CHILD CUSTODY IN ARIZONA
- WHAT IS A THERAPEUTIC INTERVENTIONIST IN ARIZONA
- WHAT HAPPENS TO EMBRYOS IN A DIVORCE IN ARIZONA
- CHANGE CHILD CUSTODY IN ARIZONA WHEN PARENT MOVES AWAY
- IMPORTANCE OF MEDIATING A CHILD CUSTODY CASE IN ARIZONA
- CHILD CUSTODY AND CRIMINAL RECORDS IN ARIZONA
- HOW TO PREPARE FOR A CHILD CUSTODY HEARING IN ARIZONA
- WHEN FINDINGS OF FACT ARE NOT REQUIRED AFTER A CHILD CUSTODY TRIAL IN ARIZONA
- COURT APPOINTED CHILD THERAPIST IN ARIZONA
- HOME STATE CUSTODY JURISDICTION WHEN CHILD RELOCATED TO ARIZONA
- CAN VISITATION WITH A CHILD BE REDUCED WITHOUT PRIOR NOTICE IN ARIZONA
- CHILDREN WITNESSING DOMESTIC VIOLENCE IN ARIZONA
- CHANGE IN CIRCUMSTANCES FOR A CHILD CUSTODY MODIFICATION IN ARIZONA
- HEARING TO DECLINE CHILD CUSTODY JURISDICTION IN ARIZONA
- CUSTODY OF A CHILD IN AN ARIZONA DEPENDENCY CASE
- LATE DISCLOSURE IN AZ CHILD CUSTODY CASE
- EMERGENCY CHILD CUSTODY WHEN ARIZONA LACKS JURISDICTION
- HOW TO REGISTER A CHILD CUSTODY ORDER IN ARIZONA
- DOMESTIC VIOLENCE PRESUMPTION IN ARIZONA CHILD CUSTODY CASES
- EFFECT OF CORONAVIRUS ON CHILD CUSTODY AND VISITATION ORDERS
About the Author: Chris Hildebrand has over 26 years of Arizona family law experience and received awards from US News and World Report, Phoenix Magazine, Arizona Foothills Magazine and others. Visit https://www.hildebrandlaw.com.
Leave a Reply