“Grandparents’ rights” is an issue that comes up occasionally in Family Court. Some states recognize “grandparent’s rights” and some do not. Arizona’s domestic relations statutes do provide for grandparents to seek visitation with their grandchildren under certain circumstances. The appellate courts in Arizona have undeniably affirmed Arizona’s statutes which provide for grandparent visitation as constitutional. For the purposes of this question we are only discussing grandparent rights as they relate to visitation. There may be a circumstance where a grandparent could seek in loco parentis custody of a child but that is not what is discussed here.
Whenever a third-party (non-parent) is seeking to spend time with a child then the issue is one of visitation and not parenting time. The relevant statutes refer to “visitation” when it is a third-party and “parenting time” when it is a parent. Generally speaking, the term “grandparents’ rights” refers to grandparent visitation with their grandchildren or grandchild. A.R.S. 25-409(C) is the relevant statute on grandparent visitation and states in pertinent part as follows:
C. Pursuant to section 25-402, subsection B, paragraph 2, a person other than a legal parent may petition the superior court for visitation with a child. The superior court may grant visitation rights during the child’s minority on a finding that the visitation is in the child’s best interests and that any of the following is true:
1. One of the legal parents is deceased or has been missing at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent’s location has not been determined and the parent has been reported as missing to a law enforcement agency.
2. The child was born out of wedlock and the child’s legal parents are not married to each other at the time the petition is filed.
3. For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months.
4. For in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.
D. A petition filed under subsection A or C of this section must be verified or supported by affidavit and must include detailed facts supporting the petitioner’s claim. The petitioner must also provide notice of this proceeding, including a copy of the petition and any affidavits or other attachments, and serve the notice pursuant to the Arizona rules of family law procedure to all of the following:
1. The child’s legal parents.
2. A third party who possesses legal decision-making authority over the child or visitation rights.
3. The child’s guardian or guardian ad litem.
4. A person or agency that possesses physical custody of the child or claims legal decision-making authority or visitation rights concerning the child.
5. Any other person or agency that has previously appeared in the action.
E. In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents’ opinion of what serves their child’s best interests and consider all relevant factors including:
1. The historical relationship, if any, between the child and the person seeking visitation.
2. The motivation of the requesting party seeking visitation.
3. The motivation of the person objecting to visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5. If one or both of the child’s parents are deceased, the benefit in maintaining an extended family relationship.
F. If logistically possible and appropriate, the court shall order visitation by a grandparent or great-grandparent if the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child.
G. A grandparent or great-grandparent seeking visitation rights under this section shall petition in the same action in which the family court previously decided legal decision-making and parenting time or, if no such case existed, by separate petition in the county of the child’s home state, as defined in section 25-1002.
H. All visitation rights granted under this section automatically terminate if the child is adopted or placed for adoption. If the child is removed from an adoptive placement, the court may reinstate the visitation rights. This subsection does not apply if the child is adopted by the spouse of a natural parent after the natural parent remarries.
As stated in the statute there are some very specific requirements that must be met in order to even file a petition for grandparent visitation (A.R.S. 25-409(C) subsections 1-4). Assuming a grandparent meets the requirements to seek visitation, the court will then have to decide what the actual visitation will be. Again, this is visitation not PARENTING TIME. The Court is not likely to grant a grandparent the same type of schedule with the children that a parent would be granted. This holds true even if the parent to which the grandparents are related is absent from the child or children’s life or lives.
The typical grandparent visitation we see ordered is usually about one weekend a month and some time around major holidays. A grandparent having set visitation generally only occurs if they otherwise do not get to see their grandchildren. For example, if the biological father of the children is not involved in the children’s lives (and the requirements of 25-409(C) can be met) then that may be a situation where the PATERNAL grandparents may seek visitation with the grandchildren assuming mother in this scenario is not allowing them to see the children regularly and mother’s restricting contact is not in the children’s best interest. Ultimately the court will decide whether to order grandparent visitation based upon the best interests of the child. However, the case-law is clear that a court must, in considering grandparent visitation, give special preference to a parent’s wishes as to a grandparent having visitation with a child.
This answer is for informational purposes only. It is not intended, nor should it be construed as legal advice. No attorney-client relationship shall exist unless and until an agreement for legal services is reached between attorney and client, and a legal services contract is fully executed by and between attorney and client.