Family Law: Grandparents Rights

As a lawyer steeped in the ins and outs of family law, the role to be played by
grandparents in the lives of children of divorced parents is of great importance to me.
In representing a client in a divorce, I make sure the parties involved give full
consideration to the grandparents’ rights and place at the table.

Grandparents rights in Arizona law

The State of Arizona has a provision which allows grandparents to have visitation rights over a parent’s objection.

In order to accomplish this; (1) the grandparent must overcome the presumption that the parent always acts “in the best interest of the child,” and (2) access to the grandparents is in the child’s best interest.

This burden must be overcome by a “preponderance of the evidence” (i.e. the grandparent must show by a 51% probability that visitation is “in the child’s best interest”).

Pursuant to Arizona Revised Statute §25-409, entitled Visitation Rights of Grandparents and Great-Grandparents,

The Superior Court must find that the visitation would be in the child’s best interest and any of the following must also be true:

  • The marriage of the parents has been dissolved for at least three (3) months; or
  • A parent of the child is deceased or has been missing for at least three (3) months. [“Missing” is defined as; the parents’ location has not been determined and the parent has been reported missing to a law enforcement agency]; or
  • The child was born out of wedlock.

In determining what is in the child’s best interest, the statute mandates that the Court shall consider all relevant factors, including:

  • The historical relationship between the child and the person seeking visitation;
  • The motivation of the requesting party;
  • The motivation of the person denying visitation;
  • The quantity of visitation time requested and the potential adverse impact that the visitation will have on the child’s customary activities; and
  • If one or both of the child’s parents are dead, what is the benefit in maintaining an extended family relationship?

A grandparent will be able to easily prove that either a parent has died, or that a divorce has occurred prior to the grandparent petitioning the Court. It becomes much more difficult when the remaining spouse (who presumably has sole custody) is objecting to the grandparents visiting the grandchild.

This is why it is important to have an experienced law firm, prepare all the evidence to be presented to the Court in order to show that visitation would be in the child’s best interest.

The statute also states that once grandparent visitation is granted, the Court should attempt to order visitation to occur when the child is residing or spending time with the parent through whom the grandparent claims the right of access to the child.

In other words, if the parents are divorced and share joint custody, the grandparents should have visitation at the same time that the child would normally be with the parent who is related to the grandparents.

If that is logistically not possible, then the Court shall order visitation by grandparent to occur when the parent would have had the visitation opportunity.

The statute also requires that a petition be filed for grandparents rights in the same action in which the parents had their marriage dissolved (or in which the Court determined Paternity or Maternity), or by a separate action in the county where the child resides if no action has been filed; or if the Court entering the decree of dissolution or determination of Paternity or Maternity no longer has jurisdiction.

All visitation rights are automatically terminated if the child is placed for adoption.

An exception to this requirement is if the adoption application was placed by the new spouse of a natural parent if the natural parent has remarried.

Again, these matters are relatively complex and require careful preparation. I personally recommend parents going through a divorce to consult their family law attorneys around the crucial issue of grandparents rights of visitation. Children always benefit from the reassuring presence and advice of loving grandparents.

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