Wednesday, 27 February 2013 14:04

Arizona Grandparents Visitation Rights: Not Just for Grandparents Anymore

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The recent changes in Arizona's custody (now legal decision-making) and parenting time statutes got all of the publicity, but the Arizona legislature also made some important changes to the grandparents visitation statutes. Some fo the changes are organizational. For example, the legislature combined the grandparents visitation statute with the statute on custody by a non-parent.

As for the substantive changes to the grandparents visitation statute, the most important change is that the statute no longer pertains to just grandparents and great-grandparents. The old version of the statute said that the Superior Court may grant grandparents and great-grandparents reasonable visitation rights if such visitation is in the child's best interests (and certain other factors were present). Now, the statute says that the Superior Court may grant "a person other than a legal parent" visitation rights with a child if it is in the child's best interest (and certain other factors are present). Therefore, visitation rights of a non-parent are now open to not only grandparents and great-grandparents, but also to aunts, uncles, cousins, step-parents, former step-parents, and friends, among others. Does this mean that a total stranger can theoretically get visitation rights? No, at least in most cases, because the Court must first find that visitation rights are in the child's best interest. However, this change appears to be quite profound because it significantly expands the class of people who may seek (and get) visitation rights with a child.

What are the "certain other factors" that the court must find in order to grant visitation rights to a person other than the legal parent? The legislature only made a slight change to these factors. The factors under the old statute were that, in addition to finding that visitation is in the child's best interest, the court must also find one of three things: the parents have been divorced for at least three months, a parent of the child is dead or has been missing for at least three months, or the child was born out of wedlock. The only changes for these three factors are that the born out of wedlock factor now says, "The child was born out of wedlock and the child's parents are not married to each other when the petition is filed;" and the factor regarding the parents' divorce only applies to grandparents. Therefore, for grandparents to get visitation rights, they must rely on one of the three factors (divorce, born out of wedlock, or death of a parent), but other persons seeking visitation must rely on either the divorce of the parents or the death of a parent. Furthermore, the parents of a child born out of wedlock who subsequently marry each other, have eliminated that factor.

The statute also sets forth factors that the court must consider in determining the child's best interest. They are: the historical relationship between the child and the person seeking visitation rights, the motivation of the party seeking visitation, the motivation of the party denying visitation, the quantity of visitation time requested and the potential impact on the child's customary activities, and the potential benefit of maintaining contact with the family of a deceased parent. The legislature made no changes to these factors.

I remember my first grandparents visitation case. I represented the grandparents, whose son had two small children and had very limited parenting time rights, which he never exercised. He also lived in a different state. The mother adamantly refused to allow the paternal grandparents to see or talk to the children because, she said, they were not religious enough, they did not provide her and the children with financial support, and because she thought that they would allow their son to see the children. I knew that my clients were going to prevail when, at the initial court appearance, the judged asked, "So what's the problem? The parties just can't agree on a schedule?" and opposing counsel then had to explain that the mother was unwilling to agree to ANY schedule.

I am a Phoenix grandparents visitation attorney. I have experience prosecuting and defending these cases. If you have a grandparents visitation issue (or any visitation issue) in your family law case I would love to talk to you.

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Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
(602) 595-6870

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