Grandparent’s Rights (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.

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 somewhere—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 exceptions 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 eliminated render 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, 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).