Posted on : October 24, 2017, By: Christopher Hildebrand
Grandparents Visitation Rights 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.
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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.’
Grandparents Visitation Rights Arizona.
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.
Visitation Rights of Grandparents in Arizona.
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).
Visitation Rights of Grandparents in Arizona.
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 a question about child custody in Arizona, please call to speak to one of our experienced Scottsdale and Phoenix child custody Arizona attorneys at (480)947-4339.