Grandparents’ Rights in AZ
In some cases, a divorce is resolved amicably. There are no disagreements regarding each parent’s time spent with the children and how significant decision 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?
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.
The child or children were born out of wedlock.
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.
The attorneys at Hildebrand Law, PC have successfully represented grandparents seeking to spend time with their children. If you are being denied time with your grandchildren, please call the attorney’s at Hildebrand Law, PC today.