It is very common for grandparents to want or need contact with their grandchildren and a Phoenix family attorney can help you assert your rights. There is no guarantee that you will be granted visitation, but Arizona courts do recognize that it is beneficial to the grandchildren to have grandparents taking an active role in their upbringing. In fact, many times there is no other viable parental figure in the children’s lives.
There are generally two scenarios where a grandparent would try to assert the right to have access to their grandkids:
- To get custody of the children when the actual parent or parents are unable or unfit to care for the children because of incarceration, addiction or death.
- To visit their grandchildren if they are, for one reason or another, denied access by one or both of the child’s legal guardians
There are many cases of grandparents seeking judicial relief in order to have visitation rights or custody granted them. However, this can be a very tricky area of the law because courts generally err on the side of the actual parent(s). Having the assistance of a qualified attorney from the Phoenix or Scottsdale area can make the process easier and ensure that you are asserting all of the legal rights available to you.
What steps do I have to take in order to get custody of my grandchildren?
One of the most important considerations in every case involving custody rights or visitation with children is whether or not such rights are in the “best interest” of the child. Regardless of whether you are a parent or grandparent, if your presence would be significantly detrimental, custody or visitation may be denied.
There is a defined set of guidelines in Arizona law that allows grandparents or other third party to have some custody rights. Arizona Revised Statute 25-409 states that third parties may assert their right to custody if all of the following apply:
- The person filing the petition stands “in loco parentis” to the child. That is, the person filing the petition must be in an existing “parental” role with regard to the child. For example, if the parents have both died, the grandparent could likely “stand in the shoes” of the deceased parent,
- It would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision-making,
- No court has entered or approved an order regarding legal custody or parenting time within the last year, unless the child’s current environment is a serious danger to the child’s physical, mental, moral or emotional well being,
- One or more of the following conditions applies: one of the legal parents is deceased, the child’s legal parents are not married to each other at the time the petition is filed and/or a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.
It is a significant and complicated process to seek custody of one’s grandchildren and it is in your best interest to consult with an experienced family attorney if you are pursuing custody.
How do I get visitation time with my grandchildren?
Getting visitation time with your grandchildren is significantly easier than trying to gain custody of them. Visitation is also a more common goal of grandparents and a family attorney can help you sort through each of the requirements.
Generally, Superior Courts in Arizona will grant visitation rights to grandparents and certain other third parties if it is deemed to be in the best interest of the children and any of the following circumstances are present:
- One of the legal parents is deceased or has been missing at least three months. That is, their location is unknown and they have been reported missing to the authorities.
- 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.
- For grandparent or great-grandparent visitation, the marriage of the parents has been dissolved for at least three months.
- 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.
Complete denial of visitation is unlikely because even if the person requesting visitation has a bad reputation, the court can still grant “supervised visitation”.
- Under the guidelines of supervised visitation, a trained social worker will be present to monitor the interaction between the child and the visitor. If nothing bad occurs the social worker will not intervene, but they can intervene immediately if harm to the child seems imminent. Supervised visitation protects all parties involved; the child is protected from potential harm and the visiting grandparent is not at risk of false accusations by an angry parent or guardian because the interaction is monitored.
Other requirements for a grandparent or great-grandparent to seek custody or visitation
In addition to the requirements outlined above, there are other steps that need to be taken and certain facts that the court will consider in its decision making process, including:
- The historical relationship, if any, between the child and the person seeking visitation.
- The motivation of the requesting party seeking visitation.
- The motivation of the person objecting to visitation.
- The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
- If one or both of the child’s parents are deceased, the benefit in maintaining an extended family relationship.
Essentially, the court wants to ensure that custody would be appropriate and in the child’s best interest. In the case of visitation, the court’s goal is focused on appropriateness of the visitation and the logistics of visitation. If the visitation requirements would be too burdensome, the court may deny the request.
An experienced family law attorney will understand the courts concerns and will be able to apply that knowledge to the specific facts of your case. Attorney Judd Nemiro has experience in these matters and will work hard to make sure there are no surprises and that your visitation or custody case goes smoothly. Call his office today!