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Originally Posted On: https://www.attorneys-arizona.com/third-party-visitation/

 

A strong parent-child relationship is crucial for fostering a child’s social and emotional growth. However, grandparents can also play a significant role in supporting a child’s development. Grandparents can serve as caregivers and playmates throughout childhood.

They can provide security and focused attention, share cultural traditions, and model healthy family dynamics. Extensive research shows that high levels of grandparent involvement in a child’s life positively contribute to their long-term well-being by encouraging prosocial behavior (compassion, sharing, cooperating, etc.) and increasing their engagement in academics. ^[1]Pulgaron, E. R., Marchante, A. N., Agosto, Y., Lebron, C. N., & Delamater, A. M. (2016). Grandparent involvement and children’s health outcomes: The current state of the literature. … Continue reading

If you are undergoing a divorce and want to ensure your child receives the care they need to thrive, consider including their grandparents in the final custody and visitation arrangement. Arizona law recognizes that maintaining relationships with grandparents is vital for a child’s healthy development and well-being, and grandparents have the right to request visitation with their grandchildren.

 

Federal Third-Party Child Visitation Laws

The US Constitution protects the parental rights of legal parents and entitles them to raise their children as they deem appropriate. This includes making decisions about the child’s living arrangements, education, healthcare, religious upbringing, and other issues. The law presumes that a legal parent is fit to make these decisions in the best interests of the child and ensure the child’s physical, psychological, and emotional needs are met.

However, in some cases, legal parents may refuse to grant visitation access to a third party, such as a grandparent or stepparent. Under the law, these individuals have the right to pursue visitation if they can prove that the proposed arrangement would protect the child’s best interests. If the parent denies the request, the non-parent can seek a court-ordered visitation agreement.

Courts will review third-party requests for visitation, but the rights of the legal parents will continue to take precedence over the rights of non-parents. The court will presume that a parent’s decision to refuse a third party’s request for visitation is in the child’s best interests unless proven otherwise. Rebutting this presumption requires the petitioner to present clear, convincing evidence that refusal of visitation does not support the child’s best interests.

 

Grandparents Rights in Arizona

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Every state has its own version of “grandparent visitation” statutes through which these family members can request the legal right to maintain their relationships with the grandchildren.

Some states feature restrictive statutes that only allow grandparents to obtain a visitation court order if the child’s parents are divorcing or one of them is deceased. In contrast, other states feature more permissive statutes.

According to grandparents’ rights in Arizona, grandparents can obtain visitation while the parents are alive, regardless of the marital status of the parents. ^[2]Arizona State Legislature. https://www.azleg.gov/ars/25/00409.htm If parents file for divorce, legal separation or annulment, or are involved in a paternity or child custody case, the grandparent’s petition for visitation may be filed as part of the same proceeding.

It will likely be determined by the same judge. If such a case is not pending, grandparents must file a visitation petition with the court in the child’s home state (the state they have resided in for at least six months).

A third party may obtain visitation rights by meeting the following criteria:

• The child’s legal parents were not married at the time of the child’s birth and were still not married when the petition was filed.
• One of the legal parents is deceased or has been considered missing for a minimum of three months. In this context, a parent is missing if their location cannot be determined and they have been formally reported as missing to a law enforcement agency.
• For grandparent or great-grandparent visitation, the marriage of the child’s parents has been dissolved for a minimum of three months.
• For in loco parentis visitation, there is a pending proceeding for dissolution of marriage or legal separation when the petition is filed.

The petitioner must verify the claims supported in the petition with detailed facts and serve a notice of the proceeding along with a copy of the petition and any attachments to the following:

• The child’s legal parents
• The child’s guardian or guardian ad litem
• Any third party with legal decision-making authority over the child or visitation rights
• Any individual or agency with physical custody of the child
• Any individual or agency that claims legal decision-making authority or visitation rights
• Other individuals or agencies previously appearing in the action

 

How Judges Determine the Child’s Best Interests

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When determining whether to grant visitation rights to a non-parent, judges prioritize the best interests of the child. ^[3]Banach, M. (1998). The Best Interests of the Child: Decision-Making Factors. Families in Society, 79(3), 331–340. https://doi.org/10.1606/1044-3894.992 The judge’s goal is to review the available evidence and make a judgment that will protect the child’s rights to adequate care. Judges tend to prefer maintaining the status quo if they believe that introducing new circumstances may potentially confuse or negatively affect the child. However, it is possible to change this status quo with sufficient evidence that such a modification would be in the child’s best interests.

The judge will consider these factors when reviewing a petition for visitation:

• The opinion of the legal parents regarding what serves the child’s best interests
• The historical relationship between the petitioner and the child
• The petitioner’s motivation for seeking visitation rights
• The motivation of the parent objecting to visitation
• The amount of visitation time requested by the petitioner and the potential adverse impact of visitation on the child’s daily life and activities
• If one or both legal parents are deceased, the benefit of maintaining a family relationship between the petitioner and the child

 

Scheduling Grandparent Visitation Time

Scheduling visitation time involves carefully balancing the child’s best interests in maintaining a relationship with their grandparents while also respecting the rights of the parents to make decisions about raising the child. ^[4]Lee, M. H., Chung, D. S., Moon, D. S., & Kwack, Y. S. (2020). The Concept and Historical Background of Custody Evaluation. Soa–ch’ongsonyon chongsin uihak = Journal of child & … Continue readingWhen filing the petition for visitation rights, the grandparent should propose a visitation plan.

The judge will generally approve this plan as long as it protects the child’s best interests and no one objects to the terms of the plan. If the parents object, the judge will likely ask the parents and grandparents to determine a visitation schedule themselves to ensure the plan meets everyone’s needs and accommodates their schedules.

A visitation plan could include the following:

• Mid-week or weekend time
• Overnight stays
• Special occasions, birthdays, and holidays
• Summer, school breaks, and vacation time
• Phone calls or virtual visitation
• Arrangements for transportation
• Planning for emergencies

If the judge approves the request for grandparent visitation and the parents live at separate residences, the judge will typically try to schedule the grandparents’ visitation for periods when the child of the grandparent has custody of the child. For example, the maternal grandmother would receive visitation time during the child’s mother’s custodial periods, while the paternal grandmother would receive visitation during the child’s father’s custodial periods.

If the parent is missing, deceased, or possesses no visitation rights of their own, the judge may order visitation time to occur during the times that the parent would have had custody of the child. Grandparents’ visitation rights do not end if the child moves to another location, and the grandparent can petition the court to modify the order if a parent relocates.

The judge may order supervised grandparent visitation if they feel it is necessary for safeguarding the child’s safety and well-being. Supervised visitation may be ordered if the judge is concerned about the potential for any form of abuse, substance use, mental illness, or other circumstances that can negatively affect the child. ^[5]Turhan, Z. (2021). Safe Father–Child Contact Postseparation in Situations of Intimate Partner Violence and Positive Fathering Skills: A Literature Review. Trauma, Violence, & Abuse, 22(4), … Continue reading

The parents can hire an adult from an approved agency to supervise the interactions between their child and grandparent or they can choose a trusted relative or family friend. ^[6]Maguire-Jack, K., Font, S. A., & Dillard, R. (2020). Child protective services decision-making: The role of children’s race and county factors. The American journal of orthopsychiatry, … Continue readingIf the visitation goes well and continues to support the child’s best interests, the grandparent may later request a modification to the visitation order. This could be to obtain unsupervised visitation, increase the length or frequency of visitation times, or request other favorable terms.

 

Enforcement of Grandparents’ Visitation Orders

If the parent violates the grandparents’ rights in Arizona by obstructing access to the child or refusing to follow the terms of the visitation arrangement, court can take various steps to resolve the violation, such as:

• Finding the parent in contempt of court
• Ordering a new visitation arrangement to make up for lost time
• Ordering the parent to pay to take, or re-take, a parent education class
• Ordering family counseling at the expense of the parent
• Ordering the parent to pay civil penalties
• Ordering mediation or alternative dispute resolution at the parent’s expense
• Establishing another type of court order that protects the child’s best interests
• Requiring the parent to pay court costs and attorneys’ fees

 

Set Your Children Up for Success

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Allowing a child’s grandparents to play a meaningful role in their life is proven to positively impact the child’s development. This bond should be protected regardless of your relationship with the child’s co-parent. Whether you are filing for divorce or have already obtained a divorce order, your child’s grandparents likely want to ensure they can still spend time with your children.

At Reppucci & Roeder, our family law attorneys can help you negotiate a fair, reasonable grandparents’ visitation agreement that protects your rights, their rights, and the best interests of your child. If you are seeking more information about third-party visitation rights in Arizona, contact us today to discuss how you can reach the best outcome for your family.