What is the difference between grandparents’ rights and third-party rights?
None. Grandparents have the same rights as any other third party with the exception they can file for visitation for a child who was born into wedlock once their parents have been divorced for three months. In all other contexts, their rights are the exact same as any other third party.
The reason for this finds its origins in Finck v. O’Toole, 179 Ariz. 404, 407 (Ariz. 1994). In that case, the mother had a child two months before she married her husband. He and his family believed he was the father of the child. Although she knew differently, she never told him or his family until she initiated the divorce proceedings. At the time of the divorce proceedings, the child was living with and had a very close relationship with the husband’s parents. They filed for visitation. The Arizona Supreme Court held they could not seek visitation rights under the statute as it was then written because at the time visitation was limited, by statute, to non-custodial parents, grandparents, and great-grandparents. The Arizona Supreme Court, therefore, concluded that all other individuals were precluded from seeking visitation because the Legislature had not authorized anyone who was not a biological relative to file for visitation.
In a special concurrence, Chief Justice Zlaket wrote a scathing rebuke of the majority’s reasoning, arguing that it was far more likely that Legislature did not fully consider the issue rather than purposefully omitted step-grandparents. He then called on the Legislature to rectify the situation. His words are worth consideration:
There is yet another reason why these questions cry out for legislative clarification. In this case, for example, everyone except the mother was under the impression that the stepfather was the natural father of the child until the divorce was filed. The step-grandparents had taken care of and bonded with this child, believing all along that he was their flesh and blood, only to have a cruel trick played on them which now results in the harsh reality that they may be unable to see him again. Under our decision today, the same result would presumably be reached if a “father” in such a situation sought visitation with a child he thought was his and had raised as his own. Thus, it might be argued that all fathers, married or unmarried, would be well-advised to get blood tests before emotionally investing in relationships with children who might later be completely taken from them. And, stepparents should be cautioned at the outset about the emotional risks of getting close to the children of their spouses. The same dangers face step-grandparents and great-grandparents who dare to engage in such meaningful relationships. All of this seems ludicrous to me, particularly at a time when we so often lament the loss of family ties and values. Id. at 408-409.
Chief Justice Zlaket’s words clearly detailed an incredibly large problem with he law as it then existed. The Legislature responded to the Finck rule by expanding the class of individuals who may seek visitation rights. The limits now are not so much a matter of who may file, but rather limitations on when one might file and when the Court may grant visitation.
