Grandparents’ Rights in Arizona
Arizona Grandparent’s Rights
If you are a grandparent and your child is going through a divorce or child custody case, you may be asking questions about grandparents’ rights in Arizona. In some cases, a divorce is resolved amicably.
There are no disagreements regarding each parent’s time spent with the children and how significant decisions affecting the children will be made. In many cases, the “discussion” regarding the children quickly escalates into a full-scale battle.
The back and forth over what’s best for the children is a common occurrence, and many have an opinion to share regarding the “mother’s rights” and the “father’s rights” and the “parent’s rights”, but…what about the grandparents’ rights? Do they have a say in what happens to your kids when you are getting divorced? Do you have questions about grandparents’ rights in AZ?
Grandparent child custody and visitation disputes occur more frequently than you may expect.
Grandparent visitation cases are emotionally sensitive due to the fact children are involved.
In most situations, the entire family is affected by the outcome of these child custody cases.
This can be complicated further if the grandchild’s parents are divorced, making it so each parent is already spending less time with his or her own child.
Fortunately, Arizona law provides grandparent visitation rights and, sometimes, primary physical custody of their grandchildren.
You should be aware that your legal rights to visitation with your grandchildren derive from your legal relationship as the children’s grandparents.
As a result, you would lose your grandparent’s rights if the parent through whom you are seeking to exercise your grandparent’s rights has his or her child custody revoked or parental rights terminated.
This means you no longer have the legal status as a grandparent and thus cannot rely upon the grandparent visitation rights statute. However, you may be able to claim in loco parentis status.
The purpose of this is to obtain what is referred to in Arizona as third-party child custody or visitation rights to your grandchildren.
Grandparents’ Rights in Arizona | Visitation After Divorce
Regarding Visitation – There are four distinct situations in which a grandparent in Arizona has a right to visitation. 1. When the parents’ marriage has been dissolved for at least three months. 2. The parent of the child is missing (for at least three months) and has been reported missing officially. 3. The parent of the child is deceased. 4. The child was born out of wedlock.
Regarding Visitation Post-Adoption of the Child – If the grandchild is adopted, all rights to grandparent visitation cease to exist unless the adoption was by a stepparent.
Regarding Child Custody/Legal Decision Making – This is based on the best interest of the child, which would mean the Court has to consider several variables of any given situation. 1. The parties’ wishes. 2. The child’s wishes. 3. The interactions between and the relationship of the child to each of their parents and siblings and other significant persons in the parties’ lives. 4. The child’s potential adjustment to community, school, and home. 5. The mental and physical health of the parties involved. 6. Which parent is more likely to allow the child to engage in frequent and continued contact with the other parent.
Grandparents Rights in Arizona | The Law
Arizona law protects a grandparent to petition the court for visitation with a grandchild even if the child’s parent objects to visitation between the child and his or her grandparent. A grandparent has the burden of establishing court-ordered visitation is in the best interest of the child.
Arizona Revised Statute §25-409 is the statute that provides for grandparents visitation rights in AZ. The law requires a judge to rule that the visitation requested by the grandparent is in the children’s best interests, as well as establishing the following:
The parents have been divorced at least three months, or at least one of the following factors applies:
The child’s parent through whom the grandparent seeks visitation is deceased or has been missing for three months or longer. To be legally considered to be missing, a parent must have been reported as a missing person to a local law enforcement agency.
In deciding as to whether it is in the best interests of a child to order grandparents’ visitation, the judge must take into consideration all factors that impact the children including the following:
- The historical relationship between the child and the grandparents requesting visitation
- The motivations of the grandparent seeking visitation
- The motives of the person objecting to the grandparent visitation
- The grandparent visitations schedule requested
- The impact of that plan on the child’s day to day schedule
- The benefits to the child in maintaining a relationship with his or her grandparent
It is straightforward to establish if the child’s parent has become deceased or that a divorce has occurred. Situations can become much more challenging, however, if the surviving parent wants to cut off contact between the children and their grandparents. The burden falls upon the grandparents to present persuasive evidence that visitation is in the children’s best interests.
If the parents are divorced, the law in Arizona provides that the grandparent visitation should be ordered to occur during the parent’s visitation schedule through whom the grandparents’ visitation rights are based. Stated differently, the court should schedule a grandparent’s visitation to occur during his or her own child’s court ordered parenting time with the grandchild. If the parent is deceased, the court may order grandparent visitation during the time the deceased parent would have otherwise been entitled to receive.
A petition for grandparents’ visitation rights must be filed under the same case number as the divorce of the children’s parents. If the parents were not married, the case would either be lodged in the same paternity case filed by the parents or, if a paternity case has not been filed, in a separate cause of action in the county in which the child primarily resides.
A grandparent’s right to visitation is dependent upon that grandparent maintaining a legal relationship with the child. The termination of a natural parent’s parental rights to a child and corresponding adoption of the child not only terminate the parent/child relationship but also ends the legal relationship of the grandparents to the child, which eliminates the rights of grandparents to request visitation.
The United States Supreme Court issued a decision in the case of Troxel v. Granville that, on its face, placed significant limitations on a court’s authority to issue an order granting a grandparent visitation with his or her grandchild. The justices of the United States Supreme Court in the Troxel case held a parent has a constitutionally protected right to the care, custody, and control of his or her children.
The justices concluded a trial judge should defer to the wishes of the parents regarding grandparent visitation. However, a court of the first instance is also required to balance the best interests of the children as well.
Arizona Court of Appeals Decision on Grandparents’ Visitation Rights in Arizona
In the Arizona Court of Appeals case of Friedman v. Roels, the parties in the case include Mother and Petitioner/Appellant Lisa J. Friedman (“Friedman”), Father, Respondent David Roels, Jr. (“Roels”), and Paternal Grandparents Intervenors/Appellees, Claudia and David Roels Sr., (“Grandparents”), and minor children “M” born in 2003, and “R” born in 2005.
Friedman and Roels married in 2001 and have two common minor children “M” and “R”. The Friedman’s “informally” separated in March 2010, after an incident where Roels ‘went into a rage’ and was “admitted to a psychiatric facility with suicidal ideation”. Friedman petitioned for legal separation in September 2010, and for dissolution of marriage in May 2011. Thereafter, each party signed a consent decree of dissolution of marriage in July 2011.
Since the parties’ voluntary separation, Roels (“Father”) has had supervised visitation with his two minor children, without maintaining any ‘legal decision’ making authority until August 2015, when he and Friedman mutually agreed that while Friedman would retain ‘final decision making authority,’ she would consult with Roels on non-emergency’ matters.
The children (“M” and “R”) had been engaged in counseling beginning in June 2010 and participated in “several family therapy sessions with Roels in 2012, 2013, and 2015”. Factors of Roels prior abusive conduct towards the two minor children admittedly included, ‘yelling and losing his temper and ‘kicking [M] once’ and ‘holding him and grabbing him once.’
Paternal grandparents David Roels Sr. and Claudia Roels (“Grandparents”) filed a petition in April 2014 to obtain court-ordered visitation with their grandchildren, M and R. As of August 2015, the time set for this hearing, the Grandparents had not spoken to the children in four years, at Friedman’s insistence.
After a two-day hearing in August 2015, Grandparents testified that before the parents’ separation, they had enjoyed a close relationship with the children. This including attending M’s birth, meeting R a week after her birth, and frequently traveling to Tucson, Arizona, to attend the children’s school and sports activities and provide daycare for consecutive days at a time on at least two occasions.
Grandparents continued to send the grandchildren cards and gifts for the four years Grandparents were denied contact and parenting time by Friedman. The lower court determined that the experts hired by the parties regarding parenting time for Grandparents were of “limited usefulness” because “there just wasn’t any apprehension or …tension” between Grandparents and either of the minor children. Instead, the lower court ruled that after considering all relevant evidence, ‘including the demeanor and credibility of the parties,’ it was in the children’s best interests to have visitation with their grandparents.
Friedman contends the trial Court erred in awarding Grandparents visitation despite Friedman, as the children’s ‘only fit parent,’ having determined the visits were contrary to the best interests.
However, Arizona Revised Statute (A.R.S.) § 25-409(C) provides ‘a person other than a legal parent may petition the superior court for visitation with a child’ and, the court ‘may grant visitation rights during the child’s minority on a finding that the visitation is in the child’s best interests and . . . [f]or grandparent or great-grandparent visitation, the marriage of the parents has been dissolved for at least three months’.
The court further discussed (A.R.S.) § 25-409(E) stating: …that, in order to grant visitation to any statutorily qualified ‘third party’ the court shall give special weight to the legal parent’s opinion of what serves their best interests, and consider all relevant factors including:
1. The historical relationship, if any, between the child and person seeking visitation.
2. The motivation of the requesting party seeking visitation.
3. The motivation of the person objecting to visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
Despite Friedman’s reliance on the Troxel, McGovern and Lambertus cases, this matter has granted grandparent visitation within the parameters of A.R.S. § 25-409 that ‘does not substantially infringe on parent’s fundamental rights.’ Lambertus v. Porter, 235 Ariz. 382, ¶ 29, 332 P.3d 608, 614 (App. 2014).
Also, the appellate court in this case first held, “the court should apply a rebuttable presumption that a ‘fit parent acts in his or her child’s best interest in decisions . . . concerning grandparent visitation’ and second, the court must give ‘some special weight’ to a fit parent’s determination of whether visitation is in the child’s best interest.’
The appellate court found these “Grandparents had a ‘significant relationship [that] was very positive with the children” until the parents separated, See § 25-409(E)(1), and since the relationship resumed in 2015, it had been “progressing well”.
Some of the positives included planning for weeks for each visitation and providing activities and structure to keep the children involved, which the children responded well to, offering “spontaneous hugs” at the end of some visits with Grandparents.
Therefore, the appellate court held that Roels access and parenting time are significantly restricted, however, Roels was not found to be an unfit parent and therefore his ‘determination’ is also entitled to “special weight.”
This Appellate Court ruled that the lower court applied the proper standards in awarding visitation to Grandparents. It was also held that the court employed the fit-parent presumption and the factors set forth in § 25-409(E), and expressly accorded “special weight” to Friedman’s position.
There is sufficient evidence to support its conclusion that Grandparents have overcome the presumption, and does not bar them from exercising Grandparent visitation because Friedman was unable to show such visitation by the Grandparents would not be in the children’s best interests.
If you have questions about grandparents’ rights 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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