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 lawyer, such as Steven E. Sufrin, 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 grandparents 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.
Grandparents' visitation rights took somewhat of a setback in the year 2000 when the U.S. Supreme Court ruled that the parent has a right to control the amount of time that the grandparents can have possession of a grandchild. In Troxel v. Granville, the U.S. Supreme Court held that the Washington State's non-parent possession statute (i.e. their Grandparents' Statute) should be overturned. The Court held that the statute was too broad because it allowed any person to come to Court and challenge the parents' right to the child's possession. The Court did note that all 50 states have a grandparents' possession statute and they were specifically limiting their ruling to the Washington State statute. The bottom line is the Arizona Statute has been upheld and an Arizona Court will look for what is in the "child's best interest" when it comes to visitation of your grandchild.