Child Custody Attorneys in Scottsdale, AZ

Ideally, both parents will be involved in their child’s life. But reality is often far from ideal. We have handled the full range of custody issues. We have helped estranged parents become a meaningful part of their child’s life. We have also helped parents protect their child from the other parent’s dangerous choices.

Nothing is more important to you than your child. You want to spend time with your child, love your child, and protect your child. We can make sure you have that opportunity.

We can help make your custody issue less stressful. Our attorneys have experience representing clients in nearly every circumstance. We help our clients reach successful resolutions by ensuring they are informed throughout the process.

People come to us to for help with their custody case for a variety of reasons. Some parents come to us right when they are separating from the other parent, as they want to get a Parenting Plan in place right away. Some parents have tried to work it out with the other parent, but they find themselves continually either in conflict with the other parent or being denied access to the child. Some parents are coming to change the plan they do have, finding it no longer workable, because it puts their child in a dangerous situation, the other parent is unwilling to work with them, or something else has changed. Some parents are looking just to enforce their current plan because the other parent won’t abide by it. Some parents are looking to move out of state. Sometimes, they aren’t even parents—they are grandparents or other interested people who want to pursue visitation or perhaps even custody of a child.

10-Step Process For Establishment of Child Custody in Arizona

We Can Guide You Through Your Custody Issue

Questions to consider when starting a custody case?

• Will things get better or stay the same if you don’t go to court?
• What parenting plan would work best for your child?
• What concerns do you have about the other parent?
• What issues are you having with the other parent?
• What might the other parent say about you?
• What solutions are available through court?

Stages of a Child Custody Case in Arizona

The Beginning

Filing a Petition. While there are several different types of custody (divorce, establishment, modification, enforcement, third-party rights, or relocation), all of them must start the same way: A Petition is filed with the court.

Serving the Other Party. The other party must be served the petition or other appropriate documents in one of three ways: by process server; by certified mail, return receipt as requested, with delivery restricted to the person you are serving; or by having them sign an Acceptance of Service in front of a notary.

Temporary Orders. The family courts are impacted, and it can take six to nine months before your case ever goes to trial. Custody often cannot wait. For that reason, the petitioning party may want to consider whether asking the court for temporary orders is necessary. Temporary orders ask the court to put orders in place while the case is pending.  It requires a trial within sixty (60) days of filing. A final trial or future agreement between parents can change the temporary orders, but sometimes swift action is needed.

Response. Generally, the parent who did not file the court initiating petition will have a chance to respond. The response is optional for a Petition to Modify or a Petition to Enforce.

Litigation & Negotiation

First Court Hearing. Other than a Petition to Enforce, the first hearing will most likely be a Resolution Management Conference (RMC). The parties are required to file a resolution statement stating how they wish to resolve the outstanding issues in the case, and, if represented, they must meet and confer with each other.

Options for Settlement. There are many options for settlement, including mediations (parties negotiate using the assistance of a neutral third-party), parenting conferences (low-cost mediation option with the court strictly limited to legal decision-making or parenting time), settlement letters, and settlement conferences.

Evaluations and Professionals. The court has many options for evaluating the parties that include psychological evaluations, substance abuse evaluations, comprehensive family evaluations, vocational evaluation, and others. Additionally, the court may appoint certain professionals, such as a Court-Appointed Advisor or Best Interest Attorney. These evaluations and these professionals can carry a lot of weight in what happens in your case.

Resolution and End of Matter

Trial: Once a case starts, there are ultimately two options: settle or let the judge decide. A judge cannot make a final decision without first holding a trial. So if you cannot settle your case, you must be prepared to put on a trial.

Parenting Plan: Whether you settle or have a judge decide your case, a Parenting Plan must be issued. It must decide how legal decision-making is allotted between the parents. It must also contain not just the normal schedule for parenting time, but a holiday schedule and a vacation schedule. It should include a communication plan for how the parents are going to communicate with each and the child. There are certain other requirements, imposed by the Legislature, that must be included in the Parenting Plan. Finally, there must be a child support order and child support worksheet, even if the parties have agreed that neither party should pay child support. Once signed by the judge, the Parenting Plan remains in effect until modified. Under Arizona law, it may not be modified for one year, absent an emergency; or if a parent is not abiding by the parenting time orders, it can be modified after 6 months.

Child support allows every child to be financially cared for by both of their parents. In Arizona, the legal parents of a child are required, by law, to financially support their child. A child support order is meant to ensure that both parents bear the costs of raising the child.

Things to Consider when starting a child support proceeding?

• How will seeking child support affect parenting time or legal decision-making?
• Are the two of you currently operating under a parenting time arrangement?
• Do you need to establish legal decision-making, parenting time, or paternity at the same time you establish child support?
• Have you run a draft of a child support worksheet? What does it project you will pay or receive?
• Have you or the other parent been paying child support or will back child support need to be ordered?
• If you have been paying, what proof do you have that you have been paying child support?
• Will the other parent be forthcoming about their income?
• Are there other children involved outside of this matter that will have an effect on the outcome?

How Child Support is Calculated

Child Support Factors

The calculation for child support itself is simple. Determining and agreeing on the numbers that go into the worksheet is where it can get complicated. Here are the different factors in the child custody calculation:

Each party’s income. When parents are employed, this is usually easy to figure out, but can be complicated by things like bonuses and stock options. The same thing is true of parents who are on government assistance. When parents are self-employed, figuring out their income can become complicated.

Health Insurance. The parent who provides health insurance will get a credit for how much it costs to insure the child alone each month in health insurance. Dental and vision insurance are also included.

Private School Tuition and Childcare (if applicable). Neither private school tuition nor childcare expenses are required to be ordered, but the parties can agree to include or the Court can decide to include them.

Parenting Time Days. The amount of days each parent receives each year is the biggest factor in the child support equation.

Other factors:

• The age of the child.
• Any other children for which a parent has a child support order.
• Any other children not covered by a child support order but for whom a parent has a financial responsibility.
• Any court-ordered spousal maintenance (alimony) a parent is required to pay or will receive.

Arizona’s Child Support Income Shares Model

Arizona uses an income-shares model for calculating child support. How that works is the calculation looks at the parents’ combined incomes and says, for two people making this much money, they typically would spend this amount each month raising the child. The calculation then figures out how much that is per day to raise the child. And then it credits each parent for the amount of parenting time they have, and then splits the difference in proportion to each parent’s income. That’s a mouthful, but let’s look at an example (this is a simplified version of the formula):

Mother and Father make the same amount of money. Mother has their child two-thirds of the time. The calculation shows it costs $100/day to raise their child (insurance, daycare costs, etc).

• Mother has the child 20 days at $100/day, the worksheet shows her spending $2,000.00 per month on the child.
• Father has the child 10 days at $100/day, the worksheet shows him spending $1,000.00 per month on the child.

That means Mother is paying $1,000.00 more each month on the child than Father is. This $1,000.00 is then divided pro rata (in proportion to each parent’s income). Since they make the same amount, it is divided in half. Father owes Mother $500.00 per month in child support.

Establishing the Legal Parents

Before child support can be ordered, the Court must determine who the legal parents are. To be more clear, we’re talking about establishing paternity through the courts. This may have already been accomplished in the hospital at the time of birth if the parents both signed an Acknowledgment of Paternity that was then filed with the state. If that’s the case, then the parents listed on the Acknowledgment are going to be the child’s legal parents—with some very limited exceptions.

Otherwise, the Court can establish paternity either by both the mother and the alleged father admitting in Court paperwork that he is the child’s father or through DNA testing.

Note that a same-sex couple can be the child’s legal parents in two circumstances: (1) they were married at the time one of them gave birth to the child, or (2) by adoption.

Past Due Child Support

Past due child support, is commonly referred to as “Back Child Support”. The Court can order a parent to pay up to three years of back child support, dating back to when the parties separated (or, if they never lived together, when the child was born). But the Court is not required to do so. (The Court can also go beyond three years in certain circumstances).

The Court is most reluctant to order back child support where the parent who was ordered to pay child support has been paying it prior to the Court being ordered. The best evidence of having paid child support prior to it being ordered is to pay it by check, money order, or online transfer with a memo line that reads child support.

Clearinghouse (how child support gets paid)

Once child support is ordered, all payments should go through the Clearinghouse. The Clearinghouse is run by the state, and like all bureaucracies, it is imperfect and sometimes inefficient, but in the long run, the Clearinghouse protects both the paying parent and the recipient parent. The Clearinghouse keeps a record of what’s been paid and what’s been owed. This can prevent disputes between the parents down the road.

A paying parent should never pay child support to the recipient parent directly unless the recipient parent is willing to sign in front of a notary an Acknowledgment of Direct Payment. That document should then be filed with the Court. If this is not done, the paying parent could end up paying that child support twice.

Ideally, payments will be taken directly from the paying parent’s paycheck via an Income Withholding Order. This makes paying child support easy and efficient.

A Parenting Plan is an essential component of every child custody arrangement. Parenting plans must include the child(ren)’s normal schedule for parenting time, a holiday schedule, and a vacation schedule.

Parenting plans vary for each family based on the needs of the children and parents. Ideally, the parents will collaborate and agree on a plan that fits their situation, focusing on what is best for their child(ren). But if they cannot agree, the Court will decide.

To understand the options available and possible variations, it is helpful to review the most common parenting time schedules first.

Equal Parenting Time Plans

In most parenting time cases in Arizona, the parties either agree to equal parenting time or the Court orders equal parenting time. The reason for this is simple—equal parenting time is the starting point for the discussion on how much parenting time the Court should order. Smith v. Smith, 253 Ariz. 43, 47, ¶ 17 (App. 2022).

Why is equal parenting time the most common order?

Equal parenting time is where the Court starts in determining what parenting plan is appropriate. The reason why stems essentially from two statutes:

• A.R.S. § 25-103(B): “It also is the declared public policy of this state and the general purpose of this title that absent evidence to the contrary, it is in a child’s best interest: To have substantial, frequent, meaningful and continuing parenting time with both parents.”
• A.R.S. § 25-403.02(B): “Consistent with the child’s best interests, the court shall adopt a parenting plan that provides for both parents to share legal decision-making and that maximizes parenting time. The court shall not prefer a parent’s plan because of gender.”

Equal parenting time is the starting point—but it is not a presumption. Courts must determine what arrangement is in the child’s best interests based on the facts of each case.

5-2-2-5 Parenting Plan

The above chart runs Monday through Sunday to help you see the breakdown.

The 5-2-2-5 is the most common parenting plan ordered in Arizona. One parent has Monday and Tuesday, the other has Wednesday and Thursday, and the parents alternate weekends.

Advantages of the 5-2-2-5

• A parent does not go more than five days without seeing the child.
• Predictable weekday schedules are beneficial for school-aged children.
• Evenly balances weekday responsibilities and weekend quality time.
• Works well for toddlers, grade schoolers, and teenagers.

Disadvantages of the 5-2-2-5

• Some weeks require multiple exchanges.
• Requires both parents to be equally responsible.
• Five days apart may be difficult for very young children.

2-2-3 Parenting Plan

The 2-2-3 parenting plan involves exchanges every few days, reducing time away from either parent.

Advantages of the 2-2-3

• Children never go more than three days without seeing a parent.
• Equal distribution of weekday and weekend parenting time.

Disadvantages of the 2-2-3

• Lacks predictability for school-aged children.
• More frequent exchanges can be stressful.

Week-On, Week-Off Parenting Plan

This plan alternates parenting time weekly, with exchanges typically occurring once per week.

Advantages

• Simple and predictable.
• Reduces exchanges and conflict.
• Works well for older children.

Disadvantages

• Not ideal for younger children.
• Long gaps between parent contact.

Holiday Parenting Plans

Holiday parenting time is often a major source of stress. A detailed holiday schedule helps reduce conflict and uncertainty.

Holiday plans should include:

• Who has the child for each holiday.
• Start and end times.
• Exchange locations.
• Clear priority over the regular schedule.

Vacation Plans

Most Parenting Plans allow each parent two non-consecutive weeks of vacation each year. Vacation time typically takes precedence over the regular schedule.

Out-of-State Travel

Some plans require consent or notice before travel.

International Travel

International travel may be restricted or permitted with conditions, including passport requirements and travel safety considerations.

Additional Parenting Plan Requirements

Arizona law requires Parenting Plans to address communication, exchanges, dispute resolution, education orders, and child support.

Exchange Protocols

• Receiving parent pickup
• Public location exchanges
• School drop-off and pick-up

Communication Between Parents

Plans must outline how parents will communicate, including limits in high-conflict situations.

Child Support

Child support orders are required in all cases involving children.

Parent Information Program

All parents must complete the required Parent Information Program.

The goal is to utilize the court system only when necessary and, ideally, only one time. However, circumstances change, and sometimes the parenting plan or spousal maintenance amount the parties originally agreed to—or that the court ordered—no longer works. In other situations, the court may have ordered something that did not work from the beginning, and it may be time to involve the court again.

Family court rulings are unique compared to rulings in almost any other area of law because they can be modified. This flexibility exists due to the nature of family law cases—the needs and circumstances of the parties change over time, and the court has the ability to modify its orders accordingly.

A typical day in our office includes calls from fathers who are being denied access to their child. We understand how difficult and frustrating it is for fathers to have their child kept from them. This is especially true when it seems like the other parent is doing it for no good reason—or simply out of spite.

You are not alone in this situation. We have helped many parents like you gain access to their child. We have helped many of these parents go from no parenting time to equal parenting time, and in some instances, we have assisted fathers who went from no parenting time to full custody. We can help you get your rights to your child and to be the parent you want to be for your child.

Deciding whether to file

Studies show that the children do better when they have both parents in their lives, yet it is not unusual to see a mother trying to cut a father out of their child’s life. For unmarried fathers in such a situation, their hand is forced—they need to file with the Court to establish their rights. In most cases, the child will be better off because they did so,

In other cases, even when the father is being permitted to see the child, filing to establish rights may still be necessary to ensure that he is the “legal parent” of the child and protects his rights to the children.

Questions to Consider:

• What happens if you don’t file? Will you be allowed to see the child? If you are seeing the child now, but something happens to the mother, what would happen with the children?
• What kind of parenting plan would you want to seek? What plan would be best for your child?

• What concerns do you have about Mother?
• What concerns about you as a parent is Mother likely going to raise? Do you have any history of drugs, criminal activity, alcoholism, or violence? If so, what can you do to show the Court that those things are behind you? If it’s an ongoing problem, is this something where you’d be better off getting help, getting better, and then filing?
• Is your home ready for a child to live in it?

Establishing Your Rights

As an unmarried father, until you “establish”, your rights don’t exist. There are four components to what must be established, and you need to establish all four in order to make your rights equal to Mother’s:

• Paternity. You are not legally your child’s parent until you’ve established paternity. Even being listed on the birth certificate does not necessarily mean you are considered to be a legal parent. Under Arizona law, being on the birth certificate only gives you a presumption that you are your child’s father. You still need to go get a court order to officially become your child’s legal parent.
• Parenting Time. Parenting time refers to the schedule when the child is with each parent. Prior to the Court ordering parenting time, parenting time is technically decided by the mother.
• Legal Decision-making. Legal decision-making is the right to make decisions on behalf of your child when it comes to their healthcare, education, religious, and personal choices. Prior to the Court issuing a legal decision-making order, this right belongs to Mother.
• Child Support. Parents have a legal duty to support their children, and while a child support amount cannot be ordered until child support is established, you could be ordered to pay back child support. Additionally, child support must be decided whenever parenting time is addressed.

The Court Process to Establish

While Arizona’s laws allow a mother to be in control before a dad establishes his rights, it’s a different story once you’re in Court and a judge is deciding what will happen. With your rights being established, no more gender preferences exist. Judges are to decide what to order based strictly on the best interests of the child. Under Arizona law, judges are to presume a child’s best interests are for each parent to share in legal decision-making and have as much parenting time as possible. Therefore, unless someone presents enough evidence to convince the judge that another arrangement is more appropriate, a judge will typically order joint legal decision-making and equal parenting time. Of course, if the judge is convinced there are safety concerns, logistical issues, or some other reasons why 50-50 would not be in the child’s best interests, the judge can order a different plan.

Filing the Petition to Establish. The Petition to Establish is the paperwork that starts the Court process. It contains several documents in addition to the Petition to Establish, including a summons and, if a Father is on the birth certificate, a Preliminary Injunction.

Service. You will need to serve the mother with your Petition. You can serve her in one of three ways: (1) via process server, (2) via certified mail, return receipt, delivery restricted to the mother, or (3) giving her the paperwork and having her sign an Acceptance of Service in front of a notary. Merely handing her the papers is not service. Proof that service was made needs to be filed with the Court.

Response. The mother will have twenty (20) days to file a Response if she was served in Arizona. If outside of Arizona, she has thirty (30) days. If she does not file a Response, you can move for default.

Temporary Orders? You have the option of filing for temporary orders. Temporary orders are somewhat common in Father’s rights cases because the mothers often are not letting the father see the child. A temporary order is the quickest option to get a court order in place. It can still take two months to get temporary orders in place—but that’s about as swiftly as the court system can move. Temporary orders are also expensive because they require a trial, and even though they shouldn’t, they also have a direct impact on the final disposition of the case. So, before filing for temporary orders, it is important to consider whether it is the right move for you.

Disclosure, Discovery, and Evaluations. Disclosure is the process in which you must disclose to the mother any documents or other evidence you wish to use in court. Rule 49 of the Family Law Rules of Procedure require you to disclose certain items to the mother. Discovery describes the different court processes of obtaining information from the mother or a third party. In many contested custody cases, the Court will appoint a neutral third party to conduct interviews and examine evidence and make recommendations to the Court.

Settlement Discussions

Judges often give a speech to parents about the importance of the parents themselves deciding what happens with a child. Parents are in a better position to know what is best for their child than a judge is. Because a judge typically has 700-800 cases going at any one time, the judge will probably only spend a few hours on your case. For that reason, judges encourage parents to try and settle. The judge may order you to attend mediation or exchange settlement letters.

If an agreement can be reached, the two of you will prepare and file a Parenting Plan and Child Support Order for the judge to sign.

Trial

If you cannot reach an agreement, you will need to go to trial. Trials require substantial work. You must make sure all your exhibits and witnesses have been disclosed to the other side by the applicable deadlines. You have to prepare the exhibits and deliver them to the Court by the deadline (usually a week ahead of trial) and deliver them in accordance with the instructions in the Minute Entry setting trial. You have to prepare your Pretrial Statement, which is the most important document you’ll file in a case. You have to prepare what you’re going to present, choose whether you’ll have anyone else testify, determine your cross-examination strategy, and then you have to put on the trial itself and be ready to make objections to mother’s evidence and handle objections mother may have for your evidence.

Do grandparents have rights in Arizona?

For such a simple question, the answer is complicated. The simplest explanation is that Grandparents do not have a Constitutional right to see their grandchildren or direct their upbringing.

But Grandparents can seek a court order for visitation with their grandchildren and in some cases, for custody of their grandchildren.

Third Party Rights in Arizona

Parental Rights

Parents have a Constitutional right to the care, custody, and control of their children. Included within that set of rights is the right to exclude individuals from their children’s lives, including a child’s grandparents.

Limits of Parental Rights

No Constitutional right is absolute. Speech may be the Right with the strongest protections, but even then, no one has the right to shout fire in a crowded theater. Parental rights also have limits.

Third Party Rights

In Arizona law, Grandparents Rights are defined as “Third party rights”.

“Grandparent’s Rights”

The U.S. Supreme Court has ruled that, while parents have a Constitutional right regarding their children, states may nonetheless permit grandparents and other third parties to seek visitation with the grandchildren so long as the family court gives “special weight” to a parent’s decision regarding visitation.

Therefore, Grandparents may, in certain circumstances, ask the Court to override a parents’ decision to deny them visitation. Moreover, in situations where the child’s safety may be at risk, grandparents can ask the Court to award them custody. But, in both cases, the law carefully protects the parents’ Constitutional rights.

A.R.S. § 25-409 Third party rights

A.R.S. § 25-409 is the Arizona law that governs the ability of grandparents and other third parties to obtain an order regarding visitation or custody. Although it may appear clear at first glance, A.R.S. § 25-409 is a complicated law.

The law has two different schemes and contains unusual analysis that divides the analysis between initial pleading and trial but not exclusively. It requires an analysis of one issue but leaves the analysis of other issues completely open. It also restricts who may bring a lawsuit while also expanding who may bring a lawsuit. It hinges on undefined terms, contradicts other statutes, and must be read with other statutes for one to understand the complete analysis.

Interpretations of A.R.S. § 25-409

The Arizona Legislature’s recent changes to the law only seem to add to the complexity of the statute. The surrounding case law has not been a model of clarity either—every few years, the Court of Appeals or Arizona Supreme Court issue a ruling that changes significantly how the statute is interpreted.

 

A Real Example of a Third-Party Rights Case in Arizona

A few years ago, we handled an appeal of a third-party rights case. In that case, the judge issued a final ruling, seemingly out of nowhere.

No hearing or trial had been held, but the judge reviewed some of the case law interpreting A.R.S. § 25-409 and determined that an immediate ruling dismissing the petition was necessary. The Minute Entry made clear that the judge was confused about the standards of the statute.

We appealed the ruling. Sometimes, when you file an appeal, a judge might feel aggrieved. In this instance, the judge appeared to be relieved that we were appealing her ruling. In fact, she issued a second Minute Entry telling the Court of Appeals that she was confused by the statute and the case law and asking the Court to clarify certain parts of the law.

Later, our managing partner, Robbie Hendricks, argued before a panel of the Court of Appeals as they tried to work through the difficult statute and determine why the judge had been confused. During Mr. Hendricks’ Oral Argument, one of the judges asked him what he thought the problem was. Mr. Hendricks replied, “Honestly, it’s 409.” The panel judges looked at each other, smiled and nodded, and one of the judges responded, “We certainly agree.” They agreed that the third-party rights law is unclear and creates confusion.

 

The Two Statutory Schemes of A.R.S. § 25-409

Legal Decision-making and Placement and Visitation

Legal Decision-making and Placement

The first statutory scheme presented in A.R.S. § 25-409 is for “legal decision-making and placement.” A grandparent seeking these rights is seeking something akin to guardianship or custody of the child.

Legal decision-making is a form of custody. Historically, it was even called “legal custody.” It is the right to make decisions on behalf of the grandchild when it comes to their education, healthcare, religious, and personal care decisions. Placement is not defined by the statute, and the Court of Appeals has not yet defined it either. Hustrulid v. Stakebake, 253 Ariz. 569 ¶ 15 (App. 2022). Though a precise definition has yet to be determined, “placement” would seem to mean that the child is placed in the Grandparents’ care and would reside exclusively (or close to it) with grandparents.

Requirements for Grandparent to Petition for Legal Decision-making and Placement

1. The Grandparent must stand in loco parentis to the child. In loco parentis is defined in Arizona law, as “a person who has been treated as a parent by a child and who has formed a meaningful parental relationship with a child for a substantial period of time.” R.S. § 25-401(1). In other words, you must have a parental-like relationship. Generally, this limits this type of petition to grandparents who have been the child’s primary caretaker for a long time. The court is usually looking for facts that establish the child has lived with a grandparent for a significant period of time, and that the grandparent was the one who took care of the child’s needs.
2. It would be significantly detrimental to the child to remain or be placed in the care of either legal parent. What constitutes a significant detriment is not defined by statute. In Hustrulid, the Court of Appeals held that there cannot be a significant detriment if the order results with the child being left in the parent’s care. Hustrulid, 253 Ariz. 569 ¶ 18. So while the statute does not necessarily require parental unfitness, there needs to be an important reason as to why the child could not safely remain in the parent’s care. This could range from serious safety concerns, such as the parents using drugs, to a parent being unavailable, such as if they have been deployed, deported, disappeared, or died. But a significant detriment will not be established simply because a grandparent disagrees with how the parents are raising the children.
3. A Court has not issued a Parenting Plan involving the children in the last year. This is meant to prevent one parent losing custody, only to have their parents file for third-party rights to gain custody. Once an order regarding custody (a “Parenting Plan”) has been issued, a third-party rights petition may not be filed for a year. But an exception exists for emergencies.

It fits one of the situations described in A.R.S. § 25-409(A)(4). Under that statute, grandparents can only bring a case if one of the following applies: (1) one of the parents is deceased, (2) the parents are not married to each other at the time of filing, or (3) the parents have a divorce case pending. In other words, if the parents are both married and alive, Grandparents are not going to be able to bring a case for legal decision-making or placement.

Legal Decision-making and Placement

The first statutory scheme presented in A.R.S. § 25-409 is for “legal decision-making and placement.” A grandparent seeking these rights is seeking something akin to guardianship or custody of the child.

Legal decision-making is a form of custody. Historically, it was even called “legal custody.” It is the right to make decisions on behalf of the grandchild when it comes to their education, healthcare, religious, and personal care decisions. Placement is not defined by the statute, and the Court of Appeals has not yet defined it either. Hustrulid v. Stakebake, 253 Ariz. 569 ¶ 15 (App. 2022). Though a precise definition has yet to be determined, “placement” would seem to mean that the child is placed in the Grandparents’ care and would reside exclusively (or close to it) with grandparents.

Requirements for Grandparent to Petition for Legal Decision-making and Placement

Not every grandparent can seek legal decision-making and placement. In fact, most grandparents cannot seek these rights. The Legislature has strictly limited the class of grandparents who may qualify for these rights. To bring a Petition for Legal Decision-making and Placement, a grandparent must meet all four requirements described in A.R.S. § 25-409(A):

Initial Pleading Requirement

The statute imposes another requirement on Grandparents bringing a case. Their initial Petition must establish all four of the elements described above. This is especially important regarding the first two elements. The Grandparents need to do more than just say that they stand in loco parentis to the child and that it would be significantly detrimental for the child remain in either parent’s care.

The Grandparents must show detailed facts in their petition that, if true, would establish those elements. If Grandparents do not make such a showing, the Court is required to deny their petition at the outset of the litigation—although technically the Court may dismiss Grandparents’ petition on those grounds at any time during the proceedings.

Rebuttable Presumption

If Grandparents are able to meet the requirements of A.R.S. § 25-409(A), then the Court considers the case on the merits.

Then, the Grandparents are going to meet an additional challenge under A.R.S. § 25-409(B). That statute imposes a burden on grandparents by assigning a rebuttable presumption that awarding legal decision-making to a legal parent serves the child’s best interests.

To rebut this presumption, a grandparent must show clear and convincing evidence (which means evidence that is “highly probable or reasonably certain”) that legal decision-making is not in the child’s best interest. The statute strangely does not mention any legal standard for how placement is to be determined. And to date, case law has not addressed the issue.

Best Interests Findings

There is also some confusion as to whether the invocation of “best interests” requires the Court to make the best interests findings in accordance with A.R.S. § 25-403(A). In one unpublished, non-precedent-setting case, the Court of Appeals found it was an error for the Court to not explain under A.R.S. § 25-403(B) how it reached its decision regarding legal decision-making and placement.

Revisiting the elements of A.R.S. § 25-409(A) at trial

In Hustrulid, the trial judge believed that under the wording of A.R.S. § 25-409(A) she could not revisit the elements of that statute at trial, but instead, she was limited to just reviewing whether initial filing had sufficient facts to create a case. For example, under this judge’s interpretation, her chance to determine whether it would be significantly detrimental for the child to remain in either parent’s care would be limited to reviewing what was in the initial petition. The Court of Appeals disagreed. The trial court must analyze those elements at trial as well and determine whether Grandparents have established them.

Visitation for Grandparents and/or Third Parties

Under what circumstances can a grandparent file for visitation?

The Legislature limits who can file for visitation by limiting it to the following situations described in A.R.S. § 25-409(C):

• A legal parent is deceased or has been missing for at least three months.
• The child was born out of wedlock and the child’s legal parents are not married at the time the petition is filed.
• For grandparent visitation, the divorce has been finalized for at least three months.
• For in loco parentis visitation, a divorce proceeding involving the legal parents is pending at the time of filing.

Special Weight to Parental Rights

Because parents have a Constitutional right to the care, custody and control of their children, in 2000, the U.S. Supreme Court decided Troxel v. Granville, 530 U.S. 57, 69 (2000), a case involving grandparent visitation and a statute out of the state of Washington. A plurality of the Court determined that the visitation law violated the Constitution because it failed to give “special weight” to a parent’s determination that the grandparents should not have visitation with the children. Special weight was not defined. The meaning of “special weight” has been a major part of the pendulum swings in case law interpreting grandparents rights ever since.

A year after Troxel, the Arizona Court of Appeals did not define special weight but determined that the special weight should, at a minimum, prevent visitation orders based solely on the judge’s determination of the child’s best interests or the judge’s mere disagreement with a parental decision. McGovern v. McGovern, 201 Ariz. 172, 178 (App. 2001).

Then, in 2016, the Court of Appeals changed course, as it not only defined special weight but did so in a way that essentially rendered most third-party visitation petitions dead on arrival. In that case, the Court of Appeals held, “[W]e interpret “special weight” to mean that the parents’ determination is controlling unless a parental decision clearly and substantially impairs a child’s best interests.” Goodman v. Forsen, 239 Ariz. 110, 590 ¶ 13 (App. 2016).

A year later, another panel of the Court of Appeals determined that, when both parents are fit parents, the special weight standard did not apply when the parents disagreed on visitation. Friedman v. Roels, 397 P.3d 1063, 1068 ¶ 21 (Ariz. Ct. App. 2017).

In 2018, the Arizona Supreme Court finally weighed in. The Arizona Supreme Court struck down the Goodman definition and left again the term undefined but to be interpreted in accordance with Troxel and McGovern. Friedman v. Roels (In re Marriage of Friedman), 418 P.3d 884, 889 ¶ 20 (Ariz. 2018). The Arizona Supreme Court also adopted the idea that contradictory parental opinions on visitation cancel each other out, and in such instances, no special weight is applied; rather, the court determines the matter strictly on a child’s best interests. Id. at ¶ 34. But the Arizona Supreme Court discarded the Court of Appeals’ rule that only the opinions of fit parents are to be accorded special weight; rather, the Supreme Court instead held that if a parent’s rights have not been terminated, they must be afforded special weight, regardless of fitness. Id. at ¶ 32.

As it sits, special weight does not serve as a bar to grandparent visitation, but it does give parents an advantage in a visitation case unless the parents disagree.

Factors the Court considers in determining grandparent visitation.

In addition to applying the special weight standard, the court must also consider the following factors from A.R.S. § 25-409(E) in making its determination:

1. The historical relationship, if any, between the child and the person seeking visitation.
2. The motivation of the requesting party seeking visitation.
3. The motivation of the person objecting to visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5. If one or both of the child’s parents are deceased, the benefit in maintaining an extended family relationship.

The minimally intrusive standard

At the end of 2022, we had yet another pendulum swing on visitation. In in re Borja, 522 P.3d 699 (Ariz. Ct. App. 2022), the Court of Appeals held that even where a court awards visitation, its award must be minimally intrusive on a parent’s rights. In that case, the Court of Appeals then went through the trial court’s visitation award, striking down a variety of orders within the trial court’s orders for violating the minimally intrusive standard. From Borja, we now can surmise that on a visitation order, a Court cannot order the following:

• A holiday schedule dividing the holidays between a parent and a Grandparent.
• An order that lets Grandparents choose which weekend of visitation they exercise each month.
• An order requiring a parent to provide Grandparent with advanced notice of children’s activities.
• An order requiring weekly telephone calls between Grandparents and the children.
• An order requiring a parent to encourage a relationship between the child and Grandparents.

Grandparents’ Visitation time will come from their child’s parenting time

A.R.S. § 25-409(F) provides, “If logistically possible and appropriate, the court shall order visitation by a grandparent or great-grandparent if the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child.”

Jurisdiction and Venue

Grandparent visitation, like all other petitions touching on the custody of a child, must be filed in the state that has jurisdiction for the child. Therefore, we first ask whether any state has entered a custody order regarding the child. If so, does the child or a parent or person acting as a parent remain in the state? If yes, then that state has jurisdiction. A.R.S. § 25-1032.

If no custody order has ever been issued, then we ask where the child has lived most recently for six consecutive months; that state is the home state and has jurisdiction. A.R.S. § 25-1031 and A.R.S. § 25-1002(7) (For children under six months of age, the home state is the state where the child was born, provided the child has continued to reside in that state).

If a custody case has been started, Grandparents must file their request in the same case where that determination was made. A.R.S. § 25-409(G). If that case was out of state, and Arizona is now the state with jurisdiction, Grandparents may need to “domesticate” the prior order by registering it with the Court.

If no order has ever been issued, Grandparents must file in the county where the child permanently resides. A.R.S. § 25-402(B)(2). But see Olesen v. Daniel, 484 P.3d 139, 142 ¶¶ 11-12 (Ariz. Ct. App. 2021) (explaining that A.R.S. § 25-402(B) is merely a venue statute, and if not challenged in the first filing, it is waived).

Subsequent Adoption of the child

A visitation order does not prevent the child from being adopted. Moreover, if the child is adopted, the court’s visitation order is automatically terminated. See A.R.S. § 25-409(H).