Arizona recognizes rights to custody of or access with children for non-parents under certain circumstances. This article will address two forms of non-parental access to children through the family law Court: grandparents’ rights and what is
called in loco parentis rights. However, there are also methods for non-parents to care for children through the juvenile court, such as where the children do not have a parent willing or able to care for them or where the parties are in the adoption process. Non-parents can also get a voluntary or involuntary guardianship of children. Parents can also give limited care for children through a power of attorney. The death of both parents leads to other issues not addressed in this article.
Grandparent’s Rights. Pursuant to the statute: A.R.S. § 25-409, the Superior Court may grant grandparents or great-grandparents “reasonable visitation” if it is in the best interests of the children, and one of the following is true:
a. The parents have been divorced for at least three months;
b. A parent is deceased or missing for at least three months; or
c. The child was born out of wedlock.
The Court will determine whether such visitation is in the children’s best interests by examining such factors as the relationship between the grandparent and the children, the motivations of the grandparents and parents in requesting/denying visitation, the impact the access will have on the child’s family, and if a parent is dead, the benefit of maintaining a relationship with the extended family.
In Loco Parentis Rights: A non-parent can also gain Court-Ordered access is he/she stands in loco parentis to a child. This means the person: “has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.” A.R.S. § 25-415. If a non-parent wants visitation, the parents must be not married or in the process of a divorce. In the alternative, one parent must be dead or missing
A non-parent can only get custody if, in addition to standing in loco parentis to the child, “[i]t would be significantly detrimental to the child to remain or be placed in the custody of either of the child’s living legal parents who wish to retain or obtain custody.” This factor must be proven by clear and convincing evidence. Further, a parent must be deceased, or the parents must be divorced or getting a divorce/legal separation.
While non-parents may be able to fight for rights, it is almost always better to gain access through peaceful means. First, it is not easy to get rights to children that are not yours. The law recognizes a constitutional right to parent, including the right to choose with whom your children associate. Second, a cooperative agreement means peace in the family, and children always benefit from that. Mediation is a process that values relationships and encourages peaceful resolutions of conflicts. In mediation, parties utilize a mediator and her conflict resolution skills to help reach agreements that can, if the parties choose, be just as binding as a Court Order. The end result of an amicable mediation is generally an agreement that values relationships that children need and deserve.
Alona M. Gottfried is a family law mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or firstname.lastname@example.org. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.
Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260