For many years, Arizona courts would enter orders granting visitation to grandparents if the courts found that one of three conditions existed (parents unwed, parents divorced, or a parent deceased) and that it was in the child’s best interest.  However, the statute for grandparent visitation changed in 2013 and a recent Arizona Court of Appeals decision interpreting the statutory change has made it more difficult for grandparents to get a court order for visitation with grandchildren over a parent’s objection.
The amended statute, A. R. S. § 25-409, requires the courts to give “special weight” to a parent’s decision to oppose visitation between a child and a nonparent.  The Arizona Court of Appeals in Goodman v. Forsen, 239 Ariz. 110, 366 P.3d 587 (App. 2016), held that a parent opposing visitation does not bear the burden of proof, and that “special weight” means the party seeking visitation must prove that a fit parent’s decision to deny visitation would substantially impair the child’s best interest.
In Goodman, the trial court awarded visitation to the mother’s ex-girlfriend over the mother’s objection because it found the mother's testimony regarding her reasons for opposing visitation was not credible.  The appellate court ruled that the mother’s credibility was not the proper focus of the inquiry, and by making it the focus of the inquiry the trial court had improperly placed the burden of proof on the mother.  The Court of Appeals reversed the trial court’s decision and remanded the case to the trial court to determine whether the fit mother’s decision would substantially impair the child’s best interests.
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Thursday, 30 July 2015 16:13

Grandparents Visitation Rights in Arizona

Arizona law provides for grandparents (and other people who are not parents) to get a court order for visitation with a child.  When grandparents seek visitation with a child, they usually do so because their child (the parent of the grandchild) has passed away or has very limited time with the child, such as in the case of a parent who frequently deploys with the military, who lives across the country, or who has abandoned the child.

The best route is usually for the grandparents and parents to talk to each other and come to an agreement for the grandparents to visit the child.  My first advice to either parent or the grandparents is to talk to the other parties and work something out.  This often requires the adults to act like adults and set aside the fact that they do not particularly like the other parties or that they are mad at them.  Unless the grandparents pose a danger to the child, continued contact with the grandparents is usually best for the child.

One practical consideration for the grandparents is the parents’ reaction to their petition.  The court will probably grant a visitation order, but the court will not be overly generous with the time it orders for the grandparents.  Therefore, if the parents are voluntarily allowing some visitation, the grandparents may be better off not seeking an order from the court because it will probably not result in more time for the grandparents, could well result in less time for the grandparents (the likelihood of the parents giving the grandparents more time than the court ordered is slim), and will put more strain on the relationship between the parents and grandparents.

However, sometimes the only alternative is to seek the court’s intervention.  The grandparents must prove that visitation is in the child’s best interest and one of the following: one of the legal parents is deceased or has been missing for at least three months; the child was born out of wedlock and the child’s legal parents are not married to each other at the time the grandparents file their petition; the child’s parents have been divorced for at least three months; or, for in loco parentis visitation, the parents’ divorce or legal separation action is pending when the grandparents filed their petition for visitation.  If the grandparents successfully prove these factors, the court may grant them visitation.

The grandparents’ petition must be under oath and contain detailed facts supporting their position.  In making its decision, the court must giving special weight to the parents’ opinion of what serves the child’s best interest, and must consider all relevant factors, including: the historical relationship between the grandparents and the child; the grandparents’ motivation in seeking visitation; the motivation of the person objecting to visitation; the quantity of visitation that the grandparents seek and the potential adverse impact that it will have on the child’s customary activities; and, if one of the child’s parents are deceased, the benefit to the child of maintaining an extended family relationship.  If logistically possible, the grandparents’ visitation time must be during the parenting time awarded to the parent through whom the grandparents claim a right of visitation.

If you have questions about grandparent visitation in Arizona, please contact Thomas A. Morton.

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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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