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In Loco Parentis/Non-Parent Custody

In order for a non-parent to gain Custody over a child in Arizona, certain procedures must be followed. Pursuant to Arizona Revised Statute Subsection §28-415 (“Custody by Non-Parent”), in Arizona, a Petition can be filed in the Superior Court of the County in which the child is located or permanently resides. Certain facts must be alleged in the Petition and notice has to be provided to all of the following parties:

  • The parents
  • Anyone who has Custody or Visitation Rights as ordered by the Court
  • A Guardian Ad Litem (if this applies)
  • Anyone who claims to have Visitation or Custody right
  • Any agency which has physically Custody of the child
  • Any other agency or person who has previously appeared in Court regarding this Child and a Custody action

In addition, the Petition must contain facts which establish all of the following, otherwise the Court will summarily dismiss it:

  • The Petition must establish that the Petitioner currently stands “In Loco Parentis” to the child. In other words, the child treats the person as if they are “parent in-fact”.
  • If the child remained where he was at, or was placed in the Custody of either of the child’s living parents it would be “significantly detrimental” to that child.
  • The Petition must establish that no Court (of competent jurisdiction) has issued an order, or approved an order which affects a child’s Custody within one year of the following Petition under this section. An exception is made if it can be showed that it would seriously endanger a child’s mental, physical, emotional or moral health to be left in their current Custody setting.
  • An exception to the preceding requirements is if anyone of the following factors applies: either of the legal parents is deceased; or the child’s legal parents were not currently married at the time of the Petitioner filing the Petition and there is a pending Petition for Dissolution of Marriage or a pending Petition for Legal Separation (of the legal parents) which has been filed at the time the Petition for Custody by Non-Parent was filed.

Obviously, these requirements are very intricate and need to be thoroughly analyzed before a Petition can be filed. It is important to consult with an experienced attorney-such as those at the Cantor Law Group-before attempting to gain Non-Parent Custody.
If the person who has filed the Petition is not a child’s biological or legal parent, then there will automatically be what is known as a “rebuttable presumption” to award Custody to the legal parent, as this would be in “the “child’s best interest.” In addition, they will automatically assume that it is in the child’s best interest to have the child reared by his legal parents due to his emotional, psychological and physical needs. The burden placed upon the non-parent to rebut this presumption is to show “with clear and convincing evidence” that it would, in fact, not be in “the child’s best interest” to grant Custody to the current legal parent of the child. The local Superior Court may also grant “reasonable Visitation Rights” to a person who stands “In Loco Parentis” to the child. This could include grandparents or great-grandparents, pursuant to Arizona Revised Statutes §25-409 (Grandparents Visitation Rights), as long as it is found that it is in the “child’s best interest” to grant Visitation, and any of the following apply:

  • One (or both) of the legal parents has been missing at least three months with whereabouts unknown, or is deceased, or
  • The legal parents of the child were not married at the time the Petition for Non-Parent Custody was filed, and
  • There was a currently pending Petition for Dissolution of Marriage or Petition for Legal Separation which was filed and pending by the legal parents at the time the Petition for Non-Parent Custody was filed.

As to Grandparents Visitation Rights, a verified Petition must be filed by the person who stands “In Loco Parentis” to the child in the county in which the child resides or is currently located. Click on Grandparents Visitation Rights for more information regarding this option. Contact us, or call us at (602)254-8880 in order to meet with the Cantor Law Group for your free initial consultation today!

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