Grandparents' rights

Posted over 3 years ago. Applies to Arizona, 7 helpful votes

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The evolution of grandparents' rights

Until the last few decades, very little mention was ever made in the public arena about grandparents having or trying to exercise any legal rights regarding their grandchildren. Parents were supposed to care for and discipline their children, with the grandparents just there for support and guidance. Even if Grandma and Gramps lived in the same household, the only time they took over custody and control of the youngsters was if both parents were dead or otherwise incapacitated. However, as generations have become increasingly "me"-centered, drug addiction has skyrocketed (particularly with the introduction of meth) and the economy continues to take a nosedive, more and more parents are having their children taken away from them for unfitness. Often the most obvious and readily available choice of adult(s) to step in and care for children when the parents can't is the grandparents. Why? The grands tend to be more stable and have more money and time to spend on and with the kids.

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Short of taking custody of a grandchild, what kind of rights does a grandparent have?

There is always the right of visitation, although that is not an absolute right in the eyes of the law. If one or both parents' legal rights are still intact, and they object to visitation with one or more of their grandparents, and a court determines that it would not be in the child(ren)'s best interest to be "forced" to have contact with this or these grandparents, then it can be denied. However, it almost goes without saying that generally the relationship between grandchildren and grandparents is fairly benign and usually quite positive. Grandparents don't have to discipline children like their parents do, and have much more time to spend together and can appreciate the changes each other is going through at this time in their lives, be it the growth during childhood or the declining of old age.

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How does the court determine whether a particular grandparent is entitled to visitation with their grandchild(ren)?

Per ARS A?25-409, grandparents and even great-grandparents may petition the court for visitation rights as long as it is deemed to be in the child(ren)'s best interests and at least one of the following is true: (1) The child's parents have been divorced for at least 3 months and the grandparent is the parent of the child's non-custodial parent; (2) One of the child's parents has been deceased or missing for at least 3 months and the grandparent is the parent of the child's deceased or missing parent; or (3) The child's parents never wed.

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What other factors do the courts look at?

In determining the best interests of the child, Arizona law requires judges to consider all "relevant factors," including five statutory ones: (1) the historical relationship between the grandparent and child; (2) the motivation of the grandparent in seeking visitation rights; (3) the motivation of the parent in denying visitation; (4) the amount of visitation sought by the grandparent and any impact this may have on the child's life and activities; and (5) the benefit of maintaining visitation with extended family members in cases where one or both parents are deceased.

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So how do I go about getting custody of my grandkids?

A lot depends on the current status: where the children are and what the parents' situation is. The children may have already been removed from their parents' home and placed in a group home, foster care or temporary guardianship with a stranger or another relative. First try to obtain at least temporary then permanent guardianship. Before an adoption can take place, though, both parents' rights must be terminated. The best you can hope for is that they both sign over their rights voluntarily. If not, you may be in for a big battle if even one parent is available, able and willing to parent (has not been deemed unfit, involuntarily committed, missing for three months or more, declared dead or anything else so dire). You will have to prove through clear and convincing evidence that it would be significantly detrimental for the child(ren) to remain in the care and custody of their natural parent and that the best possible alternate placement for the kids is with you. Good luck!

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Legal disclaimer

This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.

Additional Resources

Visitation rights of grandparents and great-grandparents in Arizona

Non-parents obtaining custody and visitation rights

Grandparent rights by state (looking at Arizona)

Joan M. Bundy, Attorney at Law, Chandler, Arizona

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