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Grandparents’ Rights

In the State of Arizona, grandparents are allowed to receive visitation rights over the parents’ objections if certain conditions are met. The grandparent must be able to prove that they are acting “in the child’s best interests” (more so than the parent). They also must prove that actual access by the child to the grandparents would, in fact, be in the child’s best interests. The grandparents must prove these two factors by meeting the burden of proof known as a “preponderance of the evidence.” This means that the grandparents must prove by a 51% probability that their visitation would be in the child’s best interests. In order for grandparents to achieve custody over the parents (as opposed to mere visitation), then they would need to obtain a “Guardianship” or petition the court for a “Termination of Parental Rights.”

In Arizona, ARS §25-409 (Visitation Rights of Grandparents and Great-Grandparents) governs the rules regarding grandparent visitation. The court must be shown that visitation would be in the child’s best interests and any of the following must also be true:

  • The child was born out of wedlock.
  • The child’s parents have been divorced for at least three months.
  • The child’s parents are either dead or have been missing for at least three months. The element of “missing” is satisfied if the parent has been reported missing to law enforcement agencies and their location has not been determined.

In Arizona, when the court determines what is in the “child’s best interests”, they are required under statute to consider all relevant factors, including the following:

  • Whether one or both of the child’s parents are dead and the benefit that would be obtained by maintaining an extended family relationship.
  • The amount and quantity of visitation time which is requested and whether it would have an adverse impact on the child’s customary activities.
  • The motivation of the requesting party.
  • The motivation of the parent denying the visitation request.
  • The history of the relationship between the person seeking visitation and the child.

When looking to the above factors, it would be quite easy for a grandparent to prove: that a parent has died; a parent has been reported missing and has been missing for three or more months; or that a divorce was finalized more than three months ago prior to petitioning the court for visitation rights. The difficulty arises when the remaining spouse (who has sole custody) objects to the visitation rights of the grandparents. At The Cantor Law Group, we are very experienced in the art of presenting evidence to the judge in order to help insure that a grandparent will be allowed to visit their grandchild. It is important to have all necessary documentation (such as photos, cards, etc.) prior to meeting with The Cantor Law Group for your free initial consultation.

Per the Arizona Grandparent’s Visitation Rights statute, once visitation is actually granted, the court should attempt to order the visitation when the child is residing with the parent through whom which the grandparents have claimed their right of access. What this means is that if the parents are divorced and share joint custody, it makes the most sense that the maternal grandparents should spend their time with their grandchild when he is residing at the mother’s house, and vice versa for the paternal grandparents. If this is not geographically reasonable, then the court will order the visitation to occur when the parent would normally have visitation (even if it is not at their house).

The Arizona Grandparent Rights statute also requires that when the grandparents petition for their rights they either do it in the same action that the parents had filed regarding divorce (or paternity/maternity action), or they file by way of a separate pleading and action in the same county in which the child resides. If no actions have previously been filed, or if the previous divorce/paternity court no longer has jurisdiction, then it again must be done by way of a separate action. If a child is placed for adoption, then all visitation rights would automatically be terminated regarding the grandparents (due to the fact that the parent’s rights were terminated). The primary exception to this principle is if the adoption application was made by a new spouse (not the actual mother or the father of the child) of the natural parent if the natural parent is remarried, and now simply does not want to take care of his child.

The U.S. Supreme Court case of Troxel v. Granville held that the parent has the right to control how much time a grandparent can have possession of their grandchild. In Troxel, the U.S. Supreme Court analyzed the State of Washington’s Grandparent’s Visitation Rights statute and determined that it should be overturned as unconstitutional. The court ruled that the statue was “over broad” because it actually allowed any person to challenge the parent’s rights to the child’s possession (not just the grandparents). Although the court did note that every single state in the U.S. has a Grandparent’s Visitation Rights statute, they specifically limited their ruling to the State of Washington’s statute. Arizona’s Grandparent’s Visitation Rights statute has been held as constitutional because the courts specifically looked to the “child’s best interests” when it comes to grandparent’s visitation.

If you are a grandparent and wish to explore your rights, please contact us or call The Cantor Law Group today at (602)254-8880 to set up a free initial consultation.

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