A grandparent in Arizona may request visitation or custody if they feel their grandchild lives in a negative home life.
In some cases, remaining with their parents can be detrimental. In minor cases, the child’s parents may have passed away.
Whatever the case, grandparents do have a right to spend time with their grandchild. However, some parents may fight against this.
To win visitation and custody, you must prove many things in a court. Such criteria include loco parentis and the best interest of the child.
It can be confusing to navigate these requirements alone. Seeking advice from an experienced attorney can help guide you through the issues.
In fact, this course of action comes highly recommended.
Such attorneys are available nationwide. Fowler St. Clair has attorneys who specialize in Family Law Cases.
Grandparent Rights to Visitation
If a parent denies visitation rights to see your grandchild, you can petition the Superior Court for these rights. Under, A.R.S. § 25-409, grandparents have the right to visitation if they meet certain criteria.
First, a judge must decide if visitation rights would be in the child’s best interest. They also consider three other factors.
The courts use separate factors when determining a child’s “best interest.”
In addition to analyzing the child’s best interest, the case must also meet one of the following factors:
- The child’s parents divorced has lasted for more than 3 months;
- A parent has been deceased or missing for more than 3 months;
- The birth conditions of the child involve wedlock or birth outside of marriage.
Proving any of these three factors is relatively simple. In most cases, this information is a matter of public record.
Meaning, anyone can find this information and present it to the court. Materials that prove these factors include birth certificates, divorce papers, and death certificates.
The challenge comes in proving that the visitation rights are a benefit to the child. When considering what is in a child’s best interest, courts look at:
- The existing relationship between the child and grandparent;
- The motivation of the grandparent for seeking visitation rights;
- The motivation of the parent in denying visitation rights;
- The amount of visitation time requested;
- The benefit of an extended family relationship in the case of a deceased parent or parents
Documents alone cannot provide these factors. A court hearing is the only way to give evidence to support these factors.
The aid of an experienced attorney can make this process less nerve-wracking. The attorney can outline a testimony and evidence.
Petitioning the court for grandparent rights to visitation should occur at the same time as the divorce or parenting proceedings. You can, however, petition the court separately for visitation rights.
If an outside party adopts the child, the adoption terminates the rights to visitation completely. That is, unless, the adopting party is the stepfamily.
The adopting family can also allow visitations to continue. Arizona law does not require notifying the grandparents of parenting changes or pending adoptions.
Petitioning for grandparent rights to visitation requires the accurate completion of correct forms. The Maricopa County Superior Courts provides such a form. This form is also usable in other Arizona counties with slight differences.
Grandparent Rights to Custody
Winning custody of a grandchild can be a complicated matter. Winning custody presents even more difficulties than winning visitation.
Pursuant to A.R.S. § 25-409, a grandparent must prove a number of factors in order to win custody of their grandchild.
Grandparents must first show that they are acting in loco parentis for the child. In loco parentis means that the grandparent is acting as a parent without being the legal parent.
In other words, the grandparent provides the child with everything a parent would. The child has a parental relationship with the grandparent.
Other factors considered by the court when considering custody rights for grandparents include:
- Whether it would be detrimental to the child to remain in the grandparent’s custody.
- Whether there were previous rulings for the child’s custody within the last year. (Except in the case of physical, mental, or emotional harm);
- Whether one or both of the legal parents are dead, divorcing, or unmarried during the proceedings.
Presumptions by the Court
In Arizona, courts make a few presumptions that grandparents must overcome in order to win custody rights.
One presumption is that parents have a constitutional right to raise their children as they see fit. But the child’s best interest gets weighed against that right.
This came about after the Supreme Court Case Downs v Scheffler in December of 2003. The case helped aid grandparents in fighting for custody.
The case required the submission of new evidence. The court wanted to know why a parent would deny visitation or custody rights.
Another presumption made in the courts is that a “fit” parent will always act in the best interest of their child. This presumption was a result of the U.S. Supreme Court Case Troxel v. Granville.
The grandparent can overcome these presumptions. They must present evidence that it would be a detriment to the child to remain in the custody of the parent. This evidence must have clear and convincing proof.
Clear and convincing proof means that the given evidence has a high chance of occurring. The evidence will be more likely to occur than not.
That a child will have a negative experience with a parent could be clear and convincing given the right evidence.
Important Cases for Grandparent Rights in Arizona
Each state has their own laws regarding visitation and custody. Many of these laws came about from court cases. Some State cases affected the laws nationwide. There are some specific to Arizona.
This case was unique in that it resulted in two opinions. These opinions are commonly referred to as Dodge I and Dodge II. In Dodge I, grandparents wanted visitation rights to their two grandchildren. Their mother had died.
The father appealed the case. However, the court didn’t find the visitation request as excess time. They also required the father to encourage weekly phone calls with the grandparents.
Dodge II was decided as Dodge I faced the appeal stage. The court found that the father had violated the visitation rights already set in place.
About that time, Troxel v. Granville had been decided. The Dodge case had to be revisited. The father wasn’t found in contempt. Other constitutional issues were left undecided.
This case involved the Arizona law regarding adoption and visitation rights. The grandparents claimed it was unconstitutional to discriminate between biological and step-families.
The Arizona Superior Court decided a “fresh start” wasn’t necessary for stepparent adoptions.
Before Suing for Grandparent Rights
Before a grandparent decides to sue for visitation or custody rights, there are things you should understand. You need to understand the cost of filing this suit. Not only will it affect the grandparent, but the entire family as well.
Most of these costs come from hiring an attorney. While an attorney can aid in grandparent’s rights, their services come at a cost.
Each attorney is different. Some charge more than others. Some are willing to work with a budget.
You should do some research to decide if you need an attorney. Then find one that fits your budget.
In some cases, a grandparent can represent themselves in court. This all depends on how complicated the case is.
Grandparents should also understand that they aren’t the only ones paying for a lawyer. The parents might pay for one as well.
The more money they spend on an attorney takes away from money they could spend on the child.
In some cases, the losing party will pay a court fine. Sometimes they must pay the court fees of the winning party.
Loss of Privacy
Testifying in court means sharing your information with other people. This includes the judge, attorneys, and sometimes a jury.
Your attorney needs details to help with your case. You’ll have to share a lot of information with them about your family life.
In some cases, you’ll have to get other members of the family involved. In some court cases, you’ll be asked for a psycho-analysis. This better determines your mental state.
Effects on the Child
Ultimately, suing for grandparent rights comes down to the well-being of the child. Court cases impact the child just as much as the parents and grandparents.
There are many uncomfortable situations to consider:
- The child will have to talk about their personal feelings with multiple people
- The child may feel like they must choose between their parent and grandparent
- They may feel guilty that they’re causing the conflict
- Their living situation may get worse because of the trial and financial issues involved
- They may have doubts about their parent’s authority and judgment
- They may not understand why any of this happened
- They may struggle with life outside of the trial (school, social life)
Help with Grandparent Rights
If you need help with a custody or visitation petition, speak with an experienced attorney.
The lawyers at Fowler St. Clair can provide valuable advice in any Family Law matter. Please contact us with any questions or to discuss a case.