Grandparent's Rights

Yes, you can, provided your situation meets all the requirements of A.R.S. § 25-409(A) and (B). This was the situation in Hustrulid v. Stakebake, 516 P.3d 18 (Ariz. Ct. App. 2022) where the biological father’s rights were terminated and the children were adopted by his sister. Despite express its reluctance to do so, the Court of Appeals nonetheless found that his petition was not barred by A.R.S. § 25-409. Id. at 23-24 ¶ 14. If you do file, though, be aware that because your parental rights were terminated, the Courts may look skeptically at your petition.

No. This was the case in Greenbank v. Vanzant, 250 Ariz. 644 (App. 2021). In that case, the father was killed in a car accident, and his mother requested and was granted visitation. Unfortunately, the mother was determined to avoid the Court order at all costs. Days after the order came out, she, without informing the grandmother, moved the child to Canada and continued to defy the court order. Eventually, she filed to modify the order in Canada. The Court of Appeals found that because Arizona’s jurisdictional statute states that Arizona only keeps jurisdiction so long as a parent or child remains in the state, Arizona lost jurisdiction over the modification. But the Court of Appeals still had jurisdiction to hit the mother with attorney’s fees, which it gladly did.   

No. In Egan v. Fridlund-Horne, 221 Ariz. 229, 241 ¶ 45 (Ariz. Ct. App. 2009), a trial court awarded the non-parent equal visitation rights, meaning the child was with the mother half the time and the non-parent half the time. The Court of Appeals struck this down, finding, “as a matter of law” (i.e., the law requires this result), that the equal visitation order was reasonable because the award was custodial in nature, and a non-parent cannot use the visitation statute to gain custodial rights.

Such an award also would far exceed what is permitted in a visitation order by In re Borja’s minimal intrusion standard.

You do not have that right automatically, but, as long as your situation fits one of the categories of A.R.S. § 25-409(C), you can petition the Court to grant you visitation. But, in doing so, the Court must give the parent’s decision to grant or grant you visitation special weight?

If the parents are fit parents, then that is their decision to make, and you do not have a say in the matter.

No. In Hustrulid v. Stakebake, 516 P.3d 18, 25 (Ariz. Ct. App. 2022), the Court of Appeals held that a third party cannot share joint legal decision-making with a parent.

Under current case law, no. Borja was quite clear that a Court cannot order a parent to facilitate phone calls with a child.

That would exceed the minimally intrusive standard set forth in in re Borja. Visitation orders are supposed to intrude upon a parent’s rights with the child as little as possible.

Legal decision-making and placement are custodial rights; if granted, Grandparents would be taking custody from the parents. Visitation is asking to spend time with the child.

The law does not define it, and Hustrulid v. Stakebake, the Court of Appeals declined to define it. From context, it is clearly a right akin to parenting time, and more precisely, akin to being designated primary residential parent or being named the guardian of a child. But the Legislature has purposefully withheld the use of “parenting time” from the statute, suggesting that this right, while similar, is less than the right of parenting time. All that said, the simplest explanation for placement is that it is similar to having guardianship of a child.

OK, this might be a question only attorneys would ask, but there’s a reason why we ask it, and that reason is A.R.S. § 8-117. That law states that when a child is adopted, the law will treat that child “as though the child were born to the adoptive parent in lawful wedlock.” That was the issue in Sheets v. Mead, 238 Ariz. 55 (App. 2015) where a lesbian couple had been foster parents to a child. They intended to raise the child together, but because same-sex marriage was not legal at the time, only one of them could adopt the child. Thereafter, they broke up, and the adoptive mother blocked her former partner from seeing the child. Her former partner filed for third-party visitation on the basis that the child was not born in lawful wedlock. The Court of Appeals held that when a child is adopted before a visitation petition is filed, a third party cannot bring a visitation petition on the basis that the child was born out of wedlock. Sheets v. Mead, 238 Ariz. 55, 58 ¶ 16 (App. 2015). That ruling was, for obvious, widely viewed as unjust. The Legislature has since responded by changing the law to override Sheets by introducing A.R.S. § 25-409(I), which provides, “For the purposes of this section, a child who is adopted may be treated as if born in lawful wedlock only if the child is adopted jointly by parents who are married to one another as provided in section 8-103, subsection A.”

Only in limited circumstances. Once three months have passed since the divorce, the child’s grandparents have this option at any time. As for everyone else, a strict reading of A.R.S. § 25-409(C) would suggest that persons other than grandparents have a limited one-time opportunity to file for visitation—and that is at the time the parents are getting divorced, and even, only if the person qualifies as in loco parentis, meaning they have a parent-like relationship with the child. This again would be a strict reading of the statute; it is possible courts may not read it as strictly.