ARE YOU A NON-PARENT SEEKING CUSTODY?


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YOUR EXPERIENCED FAMILY LAW ATTORNEYS

WHAT ARE MY OPTIONS AS A NON-PARENT?
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In Arizona, third parties include relatives and custodians who may also be invested in the well being of a child. These parties can petition the Court for visitation with a minor child even if the child’s parent(s) objects. How does the court decide exactly what rights to visitation the grandparents will have? The family court is bound by certain limits that it has to consider. Third parties seeking visitation must show that such visitation is in the child’s best interests.

If you are a grandparent applying for visitation with a grandchild through the Arizona Family Court system, that child’s parents need to be divorced for at least three months. Or, in the alternative, one of the parents has to be declared missing for at least three months or declared dead. Or, in the alternative, the child was born out of wedlock. Arizona Courts focus on the child’s best interest and prioritize the parents’ legal rights to that child over the rights of all other parties. Peaceful Family Law will examine the law and your specific situation to create a compelling case for the Arizona Family Court.
 
Grandparents, stepparents, or other non-parents seeking custody or visitation rights of a child.
A judge will try to find a scenario that supports the child’s best interests.
 

Frequently Asked Questions

1

Can a Grandparent or Third Party Gain Custody of Children in Arizona?

There are three categories of persons who can gain custody of children in Arizona, and each category has its own standards that a court must apply before custody will be awarded. The first category of persons is a natural parent, whose rights are superior to non-parents generally. The next category is a person who is not the biological parent of the child but who has acted as a parent and to whom the child looks for parenting. This person has acted in loco parentis to the child. Finally, the third category is a person who is not acting as a parent but seeks to establish rights to spend time with the child and care for the child.
2

What Standards Apply for a Natural Parent to Gain Custody?

A legal parent to a child automatically has rights to a child. To lose rights, a legal parent must abuse or neglect a child, engage in criminal conduct that would justify the loss of rights, or abandon the child. However, if the parents of a child have a dispute over who should gain primary custody, the court will consider what is in the best interest of the child. There are several factors that a court will apply, but everything ultimately boils down to what is best for the child.
3

What Standards Apply in an In Loco Parentis Situation?

For someone who is already acting as a parent or custodian, the court must find must find that leaving the child with the biological parent would be significantly detrimental to the child. In situations where a custody determination has been made in the previous twelve months, the court must find that leaving the child with the biological parent will place the child in imminent danger of serious harm. Obviously, this is a heavy burden for the third party to prove, but custody may be awarded if the court finds that the child’s wellbeing is placed in jeopardy.

In situations where the third party acting In Loco Parentis to the child only seeks visitation rights, the standards are less burdensome. According to the Arizona Court of Appeals in Egan v. Fridlund-Horne, the trials courts must give special weight to the biological parent’s wishes regarding visitation between their child and the person who claims In Loco Parentis rights.
4

What Standards Apply for Non-Biological Parties Who Are Not Acting as Parents?

For parties who are not acting In Loco Parentis, custody can only be gained if the person files a Dependency Action in Juvenile Court. The party will also have to provide a demonstration of actual abuse and/or neglect of the child. Arizona courts have held that these types of situations are not addressed by the Family Law Division of the Court, but are instead referred to the Juvenile Division. Only the Juvenile Court has authority to rule on cases and grant custody to a non-biological parent who is not In Loco Parentis to the child. The court will apply the standards of a Dependency Action under the Juvenile Statutes rather than the Family Law statutes in these scenarios.
5

Can Grandparents Get Visitation Rights Through Temporary Orders?

Sometimes, Grandparents will motion the court to issue temporary orders granting them visitation rights to a child while a case is still pending. Because this issue was not addressed directly by statute, courts have had to rule on whether this practice was permissible. The Arizona Court of Appeals, in the case of Lambertus v. The Honorable Gerald Porter, held that trial courts have the inherent authority to grant visitation rights to grandparents through temporary orders.

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Peaceful Family Law was founded in 2009 with a desire to ensure the institution of family was preserved in times of conflict. Jennifer Moshier was one of the first trained collaborative law attorneys in Arizona.

We want our clients to stay in control of their family court outcomes and be involved in making a peaceful transition in to the next chapters of their lives.

 
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