Grandparents Cannot Obtain Custody of a Child From a Parent in Arizona.

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.

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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.

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