Third Party Rights

Third party rights refer to the rights on non-parent caretakers of minors and the rights to visitation they have. Depending upon each unique situation and the legal parents on the minor, the Court can allow these third party caretakers certain rights in order to best meet the needs of a child.

Grandparent Visitation

Arizona law provides grandparents with certain visitation rights. Under A.R.S. § 25-409, the court may grant visitation rights to a grandparent if the visitation would be in the child’s best interest and any of the following are true:

• The marriage of the parents of the child has been dissolved for at least three months; or
• One of the legal parents is deceased or has been missing at least three months. 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; or
• 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.

Additionally, under A.R.S. § 25-409, in determining the best interest of the child, the court must give special weight to the opinion of the parents as to what serves their child’s best interest. However, the court must consider all relevant factors, 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.

The most difficult cases for grandparents are when the mother or father objects to visitation. When a parent objects to visitation, the grandparent must do two things: (1) show that access to the grandparent is in the child’s best interest, and (2) overcome the presumption that the parent acts in the child’s best interest. As these two things are somewhat intertwined, the question really becomes whether visitation with the grandparent is in the child’s best interest.

In Loco Parentis

Non-parents other than grandparents have certain rights too. For example, under A.R.S. 25-409, a non-parent may petition the superior court for legal decision-making authority or placement of the child. However, the person filing the petition must establish all of the following:

• The person filing the petition stands “in loco parentis” to the child. In loco parentis means a person who has been treated as a parent by a child and who has formed a meaningful parental relationship with a child for a substantial period of time;
• 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;
• A court has not entered or approved an order concerning legal decision-making or parenting time within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health; AND
• One of the following applies: (a) one of the legal parents is deceased, (b) the child’s legal parents are not married to each other at the time the petition is filed, or (c) a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.

Even assuming the person can establish the items listed above, there is still a rebuttable presumption that awarding legal decision-making to a legal parent serves the child’s best interests. A third party may rebut this presumption only with proof showing by clear and convincing evidence that awarding legal decision-making to a legal parent is not consistent with the child’s best interests. See A.R.S. 25-409(B).

The experienced family law attorneys at Lancer Law can help third-parties, (including grandparents, uncles, aunts, and others) navigate through issues of legal decision-making, visitation, and placement. Call today for a consultation: (520) 352-0008. Or email us at [email protected].