LEGAL GUIDE
Written by attorney Angela M Wilson-Goodman | Oct 11, 2010

A Primer on Grandparent Rights and In Loco Parentis

Grandparent rights and the legal concept of in loco parentis ("in the place of a parent") are distinct in Arizona statutes but can often intersect in cases where a grandparent, acting in a parental role, may be entitled to seek relief under either statute. Here is some basic information on the two, how they differ, and why selecting which one to proceed under may be an important strategic decision.

In Loco Parentis ("ILP"):

In Arizona, there is a statute for ILP custody and a statute for ILP visitation (ARS 25-415). Custody refers to the legal right over the care and control of a child while visitation, as you would expect, refers only to the right to spend designated time with a child. Despite the name, neither requires parental substitution in the following sense:

“Nonparental custody and visitation statute does not require a person seeking “in loco parentis" visitation to establish that he or she has a parental relationship with a child that replaces that child's relationship with a legal parent, and the petitioning party need not show that his or her relationship with the child is superior to the child's relationship with one or both legal parents. . . . Party seeking in loco parentis visitation pursuant to statute is not required to show that the child substituted the petitioning party for a legal parent" Riepe v. Riepe (App. Div.1 2004) 208 Ariz. 90, 91 P.3d 312, as amended.

But, unlike ILP visitation, ILP custody does require the petitioning party to prove that “It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody."

Grandparent ("GP") Visitation:

There is also GP visitation (ARS 25-409). In many cases, this is going to look very similar in a legal sense to ILP visitation. In fact, the text of the statute is repetitive and Sec. 25-415 actually cross-references 25-409. ILP visitation is simply more inclusive because a petitioner does not have to be a grandparent to seek relief:

C. The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, and who meets the requirements of section 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child's best interests and that any of the following is true:

The factors that follow are the same in both statutes: (a) One of the legal parents is deceased, (b) The child's legal parents are not married to each other at the time the petition is filed, or (c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.

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