In 2013 Arizona’s grandparent visitation statute was consolidated with our in loco parentis statute. The new terminology is “third party rights” and the statute is ARS 25-409. The idea is to allow a third party, including but not limited to a grandparent or great grandparent, to petition the court to determine custody, visitation and/or legal decision making rights for a minor child. The court recognizes that family life is all too often fractured and non-traditional. Children receive care and emotional and financial support from many persons other than their parents. Parents are sometimes unavailable or ineffective due to illness, absence or substance abuse.
A petition for grandparent or other third party rights should be filed in the existing family law case involving the children if one exists.
The Petition must be well thought out. The statute provides that a Petition shall be summarily denied unless the initial pleading establishes that all of the following circumstances are true:
- The petitioner stands “in loco parentis” to the children;
- It would be very detrimental to the children to be placed or remain in the care of the legal parent who wants to keep the children; and
- No court has entered orders concerning the care of the child in the past year unless a true emergency exists
In addition, the Court must find that one of the following circumstances exist:
- One of the legal parents is deceased; or
- The childrens’ legal parents are not married to each other at the time the petition is filed; or
- A petition for divorce or legal separation of the parents is pending at the time the petition is filed; or
- For grandparent or great-grandparent visitation, the marriage of the parents of the children has been terminated for at least three months.
Once filed, the Court will determine what is in the best interest of the children. The burden of showing what is in the best interest of the children is upon the third party by clear and convincing evidence. There is a presumption in favor of a legal parent and the legal parent’s opinion as to what is best for the children is given weight. The court recognizes that parents have a right to raise their children as they deem fit without outside interference. Nevertheless, the Court’s primary concern is for the welfare of the children and not the wishes of the parents. In order to show what is best for the children, all sources of information should be gathered including but not limited to police reports, presentence reports, school records, medical records, dental records, CPS records, Court orders, psychologists records and potential testimony from all persons who have had contact with the children.