In some situations, grandparents and other third-parties may be able to obtain custody or visitation with a minor child. Arizona law makes it a “rebuttable presumption that awarding legal decision-making to a legal parent serves the child’s best interests because of the physical, psychological and emotional needs of the child to be reared by a legal parent.” ARIZ. REV. STAT. ANN. § 25-409(B). “A third party may rebut this presumption only with proof showing by clear and convincing evidence that awarding legal decision-making to a legal parent is not consistent with the child’s best interests.” Id. In Arizona, the “clear and convincing” evidence standard of proof is higher than the ordinary standard used in family law cases. See Chapman v. Hopkins, 404 P.3d 638, 643 (Ariz. App. 2017). Consequently, prevailing in a grandparents or third-party rights case can be much more difficult than it would if a legal parent were bringing the case.
That said, Arizona law provides that “a person other than a legal parent may petition the superior court for legal decision-making authority or placement of the child.” ARIZ. REV. STAT. ANN. § 25-409(A). A petition under Section 25-409(A) must establish, among other things, that the person filing the petition stands in loco parentis to the child. See id. “A person stands in loco parentis if the child has treated that person as a parent and has formed a meaningful parental relationship with the child for a substantial period of time.” See Chapman, 404 P.3d at 642. Additionally, such a petition must establish that: (a) it would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision-making; (2) a court has not validly entered or approved an order concerning legal decision-making or parenting time within one year before the filing of the petition (unless there is reason to believe the child’s present environment may seriously endanger the child); and (3) one of the legal parents is deceased, the child’s legal parents are not married to each other, or a proceeding for dissolution of the marriage or legal separation of the legal parents is pending. See ARIZ. REV. STAT. ANN. § 25-409(A).
Additionally, Arizona law provides that “a person other than a legal parent may petition the superior court for visitation with a child.” See ARIZ. REV. STAT. ANN. § 25-409(C). “The superior court may grant visitation rights during the child’s minority on a finding that the visitation is in the child’s best interests . . .” and if one of four additional bases are established. Id. For visitation, a grandparent or a third party may make their petition by showing: (1) that one of the legal parents is deceased or has been missing at least three months, or (2) that the child was born out of wedlock and the child’s legal parents are not married to each other at the time the petition is filed. See id. For grandparents, the petitioner may make their petition by showing the marriage of the parents of the child has been dissolved for at least three months. See id. For other third parties who stand in loco parentis to the child, the petition may be made on a showing that a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed. See id.
Grandparents and third-party rights cases can be difficult to navigate. Huffman-Shayeb Law, PLLC has experience handling grandparents’ rights cases and can guide a client every step of the way. If you are a grandparent, stepparent, or other individual with an in loco parentis relationship to a minor child, and you are considering seeking custody or visitation, contact Huffman-Shayeb Law, PLLC to schedule a consultation to explore your options.
Disclaimer: This publication is for educational and informational purposes only, and represents Huffman-Shayeb Law, PLLC’s understanding of the present state of Arizona law. This publication does not constitute legal advice or council, and should not be construed as a comment on the merits of any particular case. It should be noted that the laws and requirements of the State of Arizona may change at any time and that this information may not be complete or correct.