Grandparents’ Rights in Arizona

– LAW OFFICE OF DANIEL HUTTO –

Grandparents’ Visitation Rights in Arizona

Under ARS § 25-402(B)(2), a person other than a parent, including a grandparent, may petition the court for parenting-time rights. To do this, they must follow the process as outlined in ARS § 25-409. Under this statute, when a grandparent files for visitation rights with a grandchild, the court may grant the petition if it finds that visitation with the grandparent would be in the child’s best interests, and when any of the following are true:

• • One of the child’s parents is deceased or has been missing for three or more months.
  • The child’s parents are unmarried, and the child was born out of wedlock.
  • The child’s parents have been divorced for three or more months.
  • If the grandparent has served in loco parentis, the child’s parents must have a divorce or legal separation case pending.

• • The child’s relationship with the grandparent in the past
  • The grandparent’s motivation for seeking visitation rights
  • The motivations of the parent who is denying visitation to the grandparent
  • How much visitation time is being requested, and the potential negative impact that it might have on the child’s regular activities
  • Whether there is a benefit to maintaining a relationship between the child and his or her extended family when a parent is deceased

In many families, grandparents develop special relationships with their grandchildren. It can be very difficult for a child and a grandparent when a parent prevents the grandparent from seeing the child.

Arizona recognizes that grandparents can play an important role in the lives of their grandchildren.

If a court determines that granting visitation rights to a grandparent is appropriate, the visitation times will be ordered to happen when the child visits the parent that is the grandparent’s relative. If that parent is deceased, the court might order that the visitation occurs when the deceased parent would have had visitation time with the child.

Proving that a parent is deceased or that the parents’ divorce happened before the grandparent filed a petition for visitation will be straightforward. However, it can become more difficult when the parent who has custody of the child objects to the grandparent’s petition for visitation.

Getting help from the Law Office of Daniel Hutto can help grandparents gather evidence and present it in a way that supports the reasons for requesting visitation and that shows that receiving visitation would be in the child’s best interests.

 How a Petition for Grandparent Visitation Rights Works

If the child’s parents were divorced or had a paternity determination, the grandparents’ petition for visitation must be filed in the previous action. If no court case has previously been filed, the petition can be filed as to its own action in the county where the child lives.

If the child is placed for adoption outside of the home, any grandparent visitation will end unless the grandparent has petitioned for adoption or the adoption petition was filed by a stepparent.

After the petition is filed, the grandparent must serve copies of the petition and the affidavits that were filed in support to each of the following parties:

• • The child’s parent or parents
  • Any party who has legal decision-making authority over the child, or who has visitation rights
  • The guardian ad litem for the child, or the child’s guardian
  • An agency or person who has physical custody of the child, or who claims decision-making authority or visitation rights
  • An agency or person who has previously appeared in the original action

The parties who are served will have the opportunity to file objections to the grandparents’ petition. If they object, a hearing will be held so that the court may hear evidence and reach a decision.

Grandparents’ Custody Rights

When a child’s parents are unfit, the child’s grandparents might want to petition the court for decision-making authority for their grandchildren so that they can obtain legal custody. The court will deny this type of petition unless the court finds that each of the following is true:

• • The grandparents are serving in loco parentis for the child.
  • It would be harmful if the child were to be placed in the parent’s care who is requesting custody.
  • An order for legal decision-making authority has not been issued by the court within a year unless the child’s current environment puts him or her in danger of emotional, moral, physical, or mental harm.
  • A parent of the child is deceased, or the child’s parents are unmarried, or a divorce is pending.

To overcome this presumption, you will need to prove by clear and convincing evidence that it would not be in the child’s best interests to be placed in his or her parent’s custody. This will require you to have evidence that shows that your grandchild’s physical, moral, mental, or emotional well-being would be in danger if the court placed the child in the parent’s custody or allowed him or her to continue living with the parent.

If you are wanting to seek custody of your grandchildren, an attorney at the Law Office of Daniel Hutto can analyze the evidence that you have about your grandchild’s circumstances.

An attorney can advise you about whether you might be likely to succeed with your petition to obtain custody and legal decision making authority of your grandchild.

Grandparents’ Adoption Rights

If your grandchild is placed for adoption, any visitation rights that you have will terminate. However, if the person who has filed a petition to adopt your grandchild is your grandchild’s stepparent, and the stepparent is married to the child’s parent, a grandparents rights to visitation will not end.

If a child is placed for adoption by the state, however, your visitation rights will immediately terminate upon the completion of that adoption. If the child is later removed from the adoptive home, your visitation rights can be reinstated by the court.

Under ARS § 8-103, any adult in Arizona can petition the court to adopt a child, including the child’s grandparents. If your grandchild’s parental rights are terminated, you can file a petition to adopt your grandchild if you have previously filed a petition for legal decision-making authority. You must receive an order from the court granting you temporary custody of your grandchild.

Under the Indian Child Welfare Act, grandparents of children who are covered by the law have priority for adoptions.

Grandparents Rights When Children are Relocated Out of State

If you are granted visitation rights with your grandchild and the grandchild’s parent subsequently decides to relocate with the grandchild out of state, you might wonder whether you can prevent the relocation from happening.

In Sheehan v. Flower, 217 Ariz. 39 (App. 2007), the Arizona Court of Appeals held that grandparents who have visitation rights cannot prevent a parent with legal custody over a child from relocation to another state. In that case, the grandparent had cited A.R.S. 25-408 as a basis for contesting the relocation. However, the court held that the statute did not apply to grandparents.

Contact the Law Office of Daniel Hutto

At the Law Office of Daniel Hutto, we completely understand that going through a divorce can be an intimidating situation. In a perfect world, both parties would be amicable and the process would be very quick and easy. However, many of the times that is definitely not the case.

Securing a grandparents rights can be difficult in Arizona. If you are being prevented from seeing your grandchild or believe that you should receive custody because of the unfitness of the child’s parent, you should talk to an attorney at the Law Office of Daniel Hutto.

Contact us today at 602.536.7878 to request a free consultation.