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Grandparents Cannot Obtain Custody of a Child From a Parent

Posted on : September 12, 2016, By:  Christopher Hildebrand
Grandparents Cannot Obtain Custody of a Child From a Parent

Grandparents Cannot Obtain Custody of a Child From a Parent

Arizona law allows only a parent to commence a child custody hearing. Does that statute prevent a court from awarding custody to a grandparent? 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

Grandparents Cannot Obtain Custody of Child from a Parent.

Grandparents Cannot Obtain Custody of Child from a Parent.

Mother and Father had a daughter. Both asked for custody, and the court awarded it to Mother. The 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. Mother argued that the statutes do not authorize grandparent 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.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
A Google User
20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
A Google User
21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
Google User
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14:58 04 Oct 17
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
A Google User
A Google User
16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
A Google User
22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
A Google User
A Google User
18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
A Google User
A Google User
19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
A Google User
A Google User
17:44 23 Jun 16
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
Larry Flint
21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13
I cannot express enough how thankful I am that I found Hildrebrand Law. Chris Hildebrand is an excellent attorney who has my best interests in mind and always encourages me to do the right thing regardless of what the opposing party is doing. Chris knows family law very well and relies on that knowledge to format options and solutions for each situation that may arise. He knows what the Court expects and what will and will not be tolerated. He has attempted to settle this case quickly and as inexpensively as possible from the start. His paralegal, Laura, is remarkable. She is organized, quick to respond, and compassionate. Chris is well prepared with a binder full of detailed and organized information and that is likely due to her thorough skills and expertise. While getting a divorce that was unexpected is a painful and difficult process, Chris and Laura treat my family and I like friends rather than another just "client." I am hopeful that I do not need to recommend divorce lawyers to anyone in the future but if I do, Hildebrand Law will be a recommendation I would give hands down.
Lindsay Donoian
Lindsay Donoian
06:53 27 Sep 14

Arizona Law Does Not Authorize Grandparent 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

Child Custody from a Parent: Grandparents Cannot Procure.

Child Custody from a Parent: Grandparents Cannot Procure.

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 placement in the child’s best interest.

Disposition

The Arizona Supreme Court reversed the trial court’s award of temporary custody to the grandmother.

 

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