Grandparent Legal decision-making and visitation / non-parent legal decision-making

It would hardly be an overstatement to say that the Berkshire Law Office, PLLC is one of the most preeminent firms in Arizona when it comes to the issue of third party rights.  The Berkshire Law Office has been involved in some of the most substantial third party rights appellate decisions in Arizona.  When you are looking for an expert in the area of third party rights, the Berkshire Law Office knows the law, as it helped create it.  These cases include:

Doty-Perez v. Doty-Perez, 1 CA-CV 15-0844 (App. 2016) - Published Decision
McLaughlin v. Mclaughlin, 2 CA-SA 15-0032 (App. 2016) - Published Decision
Goodman v. Forsen, 1 CA-CV 14-0844 (App. 2016) - Published Decision
Sheets v. Mead, 1 CA-SA 15-0032 (App. 2015) - Published Decision

In Arizona, the visitation and legal decision-making (custody) rights of grandparents and other non-parent third parties are defined in A.R.S. § 25-409.

Legal Decision Making:

Before a court will grant any Legal Decision Making rights to a non-parent it must be established that:

·         The person filing the petition stands in loco parentis to the child.  This means that the child has treated the person as a parent for a substantial period of time.  A.R.S. § 25-401;

·          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; AND

·         A court of competent jurisdiction 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.

In addition to finding each of the above three elements, the court must find that one of the following applies as well:

·         One of the legal parents is deceased;

·         The child's legal parents are not married to each other at the time the petition is filed; or

·          A proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.

In Arizona, it is difficult for a non-parent to acquire legal decision making rights to a child because the courts typically find that parents have a fundamental right to the care, custody and management of their child(ren).  Graville v. Dodge, 195 Ariz. 119 (App. 1999).  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 and would be substantially detrimental to the child.  This is why it is crucial to have a competent attorney on your side whether you are attempting to gain some rights or prevent some rights.

Visitation:

In order to request visitation (as opposed to custody or primary placement) the non-parent must establish that the visitation is in the child’s best interest.   A.R.S. § 25-409.  Additionally, the court will take into account the following factors:

·         The historical relationship between the child and grandparent or third party;

·         The motivation of the party 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 benefit of maintaining an extended family relationship; and

·         The court must also consider if the visitation will be logistically possible and appropriate.

The Berkshire Law Office has successfully obtained everything from sole legal decision-making for grandparents and third parties, to more limited visitation. The factors required under these statutes are specific and we can assist you whether you are trying to obtain or prevent grandparent or third party rights.