Arizona provides limited rights to grandparents seeking visitation, custody and adoption of their grandchildren. In our society, grandparents often fill important roles in the upbringing and care of their grandchildren. Further, in the current economy, grandparents may be in a better position financially to meet the basic needs and provide the necessary comforts to their grandchildren.
In 1983, the Arizona legislature amended the state's laws to create a legal right to visitation for grandparents and great-grandparents. Under ARS §25-409, grandparents may petition the court for visitation rights so long as it is in the child's best interests to have visitation with the grandparent and one of the following is true:
- The child's parents have been divorced for at least 3 months and the grandparent is the parent of the child's non-custodial parent
- One of the child's parents has been deceased or missing for at least 3 months and the grandparent is the parent of the child's deceased or missing parent
- The child's parents were never married
In determining the best interests of the child, Arizona law requires the court to consider all "relevant factors," including five statutory ones:
- The historical relationship between the grandparent and child
- The motivation of the grandparent in seeking visitation rights
- The motivation of the parent in denying visitation
- The amount of visitation sought by the grandparent and any impact this may have on the child's life and activities
- The benefit of maintaining visitation with extended family members in cases where one or both parents are deceased
Grandparents seeking visitation rights should petition the court as part of the divorce proceeding or paternity proceeding, if either is held. Otherwise, the grandparents can petition the court separately for visitation.
Grandparents also have the right to adopt a grandchild, so long as they meet the requirements under Arizona's adoption laws. Generally, the grandparent will seek temporary custody of the child first, if they do not already have it, while the adoption is pending.
However, if another party adopts the child, the grandparent's visitation rights may be terminated. Under state law, once a child is adopted or placed for adoption all visitation rights end. The only exception is in cases of step-parent adoption. Grandparents with visitation rights may not even be notified that an adoption of their grandchild is pending and can have their visitation rights terminated without receiving any type of notice of the adoption.
Custody Rights & Best Interest of the Child
In order to petition for custody, the grandparent first must be able to meet the following considerations as provided under ARS §25-415:
- The grandparent must stand in loco parentis to the child (i.e., acting as a parent by providing all or some of the care for the child)
- It must be detrimental to the best interests of the child to remain in the parent's custody
- The child's custody must not have been decided within the previous year, except in cases where there is potential harm to the child
- The child's legal parents were never married, are in the process of getting divorced or separated; or one of the parents is deceased
If the grandparent cannot meet one of these requirements, then the Family Court will dismiss the custody petition.
In any child custody case in Arizona, the court's number one consideration is the best interests of the child. There is a presumption that it is in the child's best interests to remain with their legal parent.
Further, under state and federal law, parents have the constitutional right to raise their children as they see fit. There is a presumption in custody cases that fit parents will act in the best interests of their children. This means that a grandparent or other third-party who wishes to gain custody rights must be able to overcome the presumption that it is in the child's best interest to remain with the parent.
To overcome this presumption in Arizona, the grandparent must be able to prove by clear and convincing evidence that it would be significantly detrimental to the child to remain in the parent's custody. "Clear and convincing" means that it is highly probable or reasonably certain that it is not in the child's best interests to be with the parent.
Downs v Scheffler
In Downs v Scheffler (App. Div.1 2003) 206 Ariz. 496, 80 P.3d 775, the court discussed how to define a parent's constitutional rights. The court stated that the parent's wishes concerning child custody "are entitled, at a minimum, to special weight" but that the "extent of a parent's constitutional rights can only be determined by weighing that right against countervailing factors…pertaining to the best interest of the child." Thus, while parents do have constitutional rights to raise their children, these rights must be balanced against the best interests of the child. If it is not in the child's best interests to remain with the parent, then the parent's constitutional rights to raise their children may be limited.
In Downs, the maternal grandparent was seeking custody — or in the alternative, visitation rights — to her 11-year-old granddaughter. While the child's mother retained sole legal custody, the child had lived most of her life with the grandmother, who had taken care of her and provided for her in the mother's absence. The Family Court, however, determined that the mother should retain custody over the child. The issue of visitation was never determined. On appeal, the case was sent back to the family court with directions for the court to make factual findings concerning the reasons for denying custody to the grandparent, to permit the grandparent to cross-examine the expert witness and to decide on the issue of visitation rights if the mother's custody was upheld.
Factors to Determine Best Interests of the Child
ARS §25-403 sets out the factors the court must consider in determining the best interests of the child in custody cases. In Downs, the court stated that these factors apply equally in cases of custody between parents and between a parent and grandparent or other third party. These factors include:
- The wishes of the child's parent or parents
- The child's wishes
- The child's interaction and interrelationship with his or her parent or parents, siblings and any other person who may significantly affect the child's best interest
- The child's adjustment to home, school and community
- The mental and physical health of all parties involved in the custody case
- The party more likely to allow the child frequent and meaningful continuing contact with the other party
- Who has provided primary care of the child
- The nature and extent of coercion or duress used by one of the party's to obtain a custody agreement
- Whether either party has been convicted of an act of false reporting of child abuse or neglect