January 6, 2014
Tempe Family Law Attorney Identifies Issues Related to Grandparent Rights and Rights of Non -Parents
Submitted by Attorney Douglas C. Gardner
Grandparents, stepparents, and other adults may bring family law cases before the Court to obtain specific court orders for visitation or other parent-like rights for minor children. There are two primary levels of rights that the Court can grant after a case has been commenced.
The first level of rights includes legal decision making authority (formerly known as legal custody) for the children and placement of the children in that parties home. Because such rights are generally given only to legal parents, the Court will look at such cases very closely.
In order for a “person other than a legal parent” to have recognized and enforceable rights at this first level, they must establish these rights through the court process and demonstrate the following:
That the person seeking placement of the child and legal decision making for the child has been in a parent-like relationship with the child (such as the child has lived with the person for a period of time and been primarily responsible for the care and nurture of the child).
- It would be “significantly detrimental” to leave the child with either legal parent.
- That no orders have been issued regarding the legal decision making for the child in the past year (or that it is a serious emergency regarding the safely of the child).
- that one of the parents is dead, or that the parents are not married as of the time of the filing, or that the parents are divorced or a divorce is pending.
If both parents are alive and married and no divorce is pending, the Court has no authority to entertain motions from third parties or grandparents. The State of Arizona also recognizes a “rebuttable presumption” that the child’s legal parents should have legal decision making authority and placement of the child as this “serves the child’s best interest because of the physical, psychological and emotional needs of the child to be reared by a legal parent.” This requires a third party to show very clear evidence and convince the Judge that it would be better for a child to live with the third party. In other words, if the Court is undecided as to who would be the better “parent” for the child, the legal parents will win and the third party should not be given legal decision making or placement of the child.
A second level of rights can be awarded by the Court, which rights do not include legal decision making or placement of the child, but rather include court orders specific visitation with the child or children. In order for a Court to give a third party visitation, the Court must determine that such visitation is in the child’s best interests.
In order to give visitation orders at this second level, the Court must find that at least one of the following applies:
- One or more of the legal parents is dead or missing.
- The child was born out of wedlock and the parents are not currently married.
- For grandparents, the divorce was finalized at least three months previously.
- For other third parties, a divorce must be pending or completed.
If you are a grandparent, stepparent, or other third party that would like an order of visitation or legal decision making for a child, or if others are seeking such orders for your child and you do not believe such orders are in the child’s best interests, and if you have determined that you need experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at www.yourarizonadivorcelawyer.com.