DISCLAIMER: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. you should contact an attorney in person for further and specific information.
Barbara L Fuqua of Fuqua Law Firm P.C., is licensed in Arizona only.
If you have questions about THIRD-PARTY RIGHTS, IN-LOCO PARENTIS/NON-PARENT CUSTODY or GRANDPARENT RIGHTS, or if you would like to discuss your situation with an experienced family law attorney, please contact attorney, Barbara L. Fuqua, today.
The rights of a third-party in a family law matter are governed by A.R.S. §25-409. Third-parties include, but are limited to, grandparents, great-grandparents, former stepparents, and former guardians. A third-party is anyone who is not the parent of a child but who has played a significant role in the child’s life.
In order for a non-parent to request custody, one must first establish that he or she stands “In Loco Parentis” to the child. A.R.S.§25-409.
In loco parentis is Latin for "in place of a parent." Such is a person essentially treated as a parent by the child, and who has formed a meaningful relationship with the child for a substantial period of time.
In Arizona, a non-parent can request custody by alleging, among other things, that it would be significantly detrimental (harmful) for either of the child's legal parents to have custody. This can be a difficult burden to prove since it is typically viewed that parents have a fundamental right to the care, custody and management of their child(ren). Grandparents, stepparents, relatives and non-relatives should be prepared to prove that awarding custody to the legal parent(s) is not in the child’s best interest. However, if the third-party attempting to obtain custody has been taking care of the child for any length of time, then there is a presumption that the party stands in loco parentis to the child.
Arizona law, specifically A.R.S. §25-409, permits a grandparent to request court-ordered visitation in certain circumstances:
• The parents have been divorced for at least three months
• A parent has been missing for at least three months
• The child was born out of wedlock.
Determining a child’s best interests, courts will consider the parents’ wishes but will also look at a number of relevant factors including:
• The historical relationship between the child and grandparent
• The motivation of the grandparent seeking visitation
• The motivation of the person denying visitation
• The quantity of visitation time requested and the impact the visitation will have on the child’s customary activities
• If one or both of the child’s parents are dead
The court must also consider if the visitation will be logistically possible and appropriate. Typically, grandparents may petition for visitation rights in the same action in which the parents had their marriage dissolved, or by a separate action in the county where the child resides, for the purpose of obtaining a court order for visitation with grandchildren.
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