Grandparent’s Rights

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:

  1. The petitioner stands “in loco parentis” to the children;
  2. 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
  3. No court has entered orders concerning the care of the child in the past year unless a true emergency exists

CHANGES ON THE WAY TO ARIZONA’S CHILD CUSTODY STATUTES

In May 2012, Governor Brewer signed Senate Bill 1127. SB1127 updates current Arizona statutes to modify the factors a court must consider when determining what is in the best interest of a child. According to Governor Brewer, “the ultimate goal is to limit one-sided custody decisions and to encourage as much shared parent-child time as possible for the positive development of the child.” The new laws will go into effect on January 1, 2013.

The biggest changes are to A.RS. §25-403. This section sets forth the factors that a Court will assess in determining child custody based on the best interest of the child. Some noteworthy changes to section 25-403 are:

• The term “legal custody” is replaced with “legal decision-making”, and the term “physical custody” is replaced with “parenting time”;

• Which parent has provided primary care of the child and the wishes of the child’s parents have been removed as factors used to determine the best interest of the child;

• Requires the child to be of suitable age and maturity for the court to consider the child’s wishes as a factor to determine the best interest of the child.