Far too frequently, grandparents are pushed out of grandchildren’s lives, particularly after a divorce or a legal separation. Grandparents in Arizona who seek to exercise their rights in these situations will need legal advice and guidance from a Phoenix family law attorney.
In a typical scenario after a divorce, the parent who has been awarded child custody (parenting time) may keep the ex-spouse’s parents from spending time with the grandchild or grandchildren. Some grandparents in these cases are concerned about the safety and well-being of their grandchild.
In the State of Arizona, precisely what legal rights do grandparents have? If a custodial parent acts to keep a grandparent away from a grandchild, does the grandparent have a right to visitation? Or can a grandparent act legally to establish that right?
If you are the grandparent of one or more grandchildren in Arizona, you should continue reading this brief discussion of your legal rights in this state and the legal options that are available to you.
Is There an “Absolute” Right to Visit Your Grandchildren?
We all know that separation and divorce are almost always exceedingly difficult for a child. It is in exactly these types of circumstances that the emotional support and encouragement that loving grandparents can give to a child will be needed the most – and is sometimes denied.
Grandparents have a right to seek visitations with grandchildren after a separation or divorce or if one parent is deceased. In these situations, courts consider a variety of factors when a determination is made regarding grandparents and visitation rights.
When cases involving children come before Arizona courts, a court’s top priority is the best interests of the child. However, the U.S. Supreme Court has found that a grandparent has no absolute right to visit grandchildren, even when visitations are in the best interests of the child.
What Has the Supreme Court Determined?
In 2000, the United States Supreme Court declared unconstitutional a State of Washington statute that gave grandparents in that state a specific visitation right – providing that the visits were in the child’s best interests, even if the custodial parent was opposed to the visitations.
In Troxel v. Granville, the U.S. Supreme Court held that a grandparent does not have an absolute right to visitations with grandchildren, even when the visitations are in the child’s best interests, when a parent objects.
Because courts put a parent’s rights over a grandparent’s, winning visitation rights may not be easy for a grandparent. However, Arizona law provides a way that some grandparents, in some particular circumstances, will be able to overcome the legal barriers and win visitation rights.
How Can Arizona Grandparents Establish Visitation Rights?
Grandparents seeking visitation rights should speak with a Phoenix family lawyer about the details of their case. If you and your lawyer can prove to the court that your visits will be in the child’s best interests, and if any of these conditions also apply, you may acquire visitation rights:
- The child’s parents divorced three months ago or longer.
- One parent has been missing or deceased for three months or longer.
- The child’s parents have never married.
Grandparents who seek visitation rights in Arizona must be prepared to tell the judge why their visitations are in the child’s best interests, and they should be able to offer evidence or testimony that tells the court more about their already existing grandchild-grandparent relationship.
How Do the Courts Balance the Rights of Parents and Grandparents?
When grandparents seek visitation rights, Arizona courts try to balance the child’s best interests and the grandparent’s rights with the custodial parent’s authority to choose who spends time with the child. To decide if grandparental visits are in a grandchild’s best interests, a court considers:
- the existing grandchild-grandparent relationship
- the reason why the grandparents are seeking visitation
- the reason why the parent is denying visitation
- the quantity of time requested and its impact on the child’s routine activities
- the benefit to the child if either or both parents have passed away
The truth is, if both parents are alive and they have not divorced, grandparents have no legal recourse. But even in these cases, an Arizona family law attorney may be able to negotiate with the parents or offer another option.
How Can Grandparents Seek a Child’s Legal Custody?
After a parent’s death, or if a child has been abused, neglected, or abandoned, grandparents may be compelled to seek the legal custody of one or more grandchildren. Under Arizona law, if the grandparents have already acted “in loco parentis,” they have grounds to seek custody.
“In loco parentis” is the (Latin) legal term that describes someone that a child has already related to as a parent and someone who has already established an ongoing parental-style relationship with that child for a considerable length of time.
What Does It Take to Prevail With a Child Custody Petition?
To win the custody of a grandchild in Arizona, grandparents and their attorneys must demonstrate to the court that all of the conditions listed here are true:
- The grandparent has already been acting in loco parentis for a significant length of time.
- Allowing the child to stay in either parent’s custody, or awarding custody to either parent, would be “significantly detrimental” to the child’s health, welfare, and best interests.
- A court with jurisdiction has not approved or entered a custody order for the child in the year prior to the grandparent’s custody petition, or there is evidence that the child’s current environment poses a serious risk to the child’s emotional or physical health.
- One parent has passed away, or the parents have not married, or there is a pending divorce or legal separation proceeding already underway.
How Will a Family Law Attorney Help You?
Arizona grandparents may be able to overcome the legal barriers to visitation or custody by offering clear, convincing evidence to the court that they meet all of the legal conditions and requirements and that granting their request is in fact in the grandchild’s best long-term interests.
But even if you can meet all of the legal conditions and requirements, if you are a grandparent in Arizona, you will not find it easy to establish visitation rights or to win a grandchild’s custody. You’ll need the advice and services of an experienced and reliable Phoenix family law attorney.