Parents are always favored in child custody disputes with third parties.  In certain cases, however, Arizona law does allow grandparents and other third parties to seek custody of or visitation with a child.  This post will address third party custody, third party visitation, and the current legal trend in Arizona relative to third party rights.

Third Party Custody.  Under A.R.S. Section 25-409.A., when certain procedural requirements are met, a third party who stands in “loco parentis” to a child may seek legal decision-making authority and primary placement of the child.  In Latin, in “loco parentis” means “in place of a parent.”  A third party who stands in loco parentis to a child is someone who, although not the child’s natural or legal parent, “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.”  A.R.S. Sec. 25-401.1.

For example, a grandmother would likely have an in loco parentis relationship with her grandchild if the child had been living with and raised by the grandmother–with the parents absent or mostly absent–for over a year.  A grandmother who simply visits frequently with a grandchild and has the grandchild for a sleepover occasionally does not have an in loco parentis relationship with the grandchild.

Even when an in loco parentis relationship exists and the other procedural requirements of the statute are satisfied, it is extremely difficult for a third party to win custody.  Under A.R.S. Section 25-409.B. there is a legal presumption that awarding custody to a legal parent is in the child’s best interests.  This presumption can only be overcome by “clear and convincing evidence” that awarding custody to the legal parent is not in the child’s best interests.  In simple terms, the in loco parentis third party must show things would be really, really bad for the child if the child were placed or remained with the legal parent.  As I said in the first line of this post, the parent is always favored.  Winning custody for the in loco parentis third party is a tall order indeed.

I used the example of a grandparent as the in loco parentis third party because, often, it is a grandparent who has the in loco parentis relationship that is prerequisite to bringing a third party custody case.  But grandparents who stand in loco parentis to their grandchildren should think long and hard before initiating a grandparent custody case.  Just because you can do something doesn’t mean you should.

Suing your own daughter and son-in-law for custody could easily cause your daughter to be estranged from you for life.  Is it worth it?  Would a better approach be to offer support and help to your grandchild’s parents?  To be a resource to them?  A babysitter for them?  If you don’t try to use the legal system to take away their children, will they be more likely to voluntarily allow you to be in your grandchild’s life?  Some circumstances certainly do justify a grandparent or other third party in seeking custody of another person’s child, but I encourage my clients to consider other approaches before filing a third party custody case.

Third Party Visitation.   Any third party who has an in loco parentis relationship with a child (e.g., a step-parent after a divorce from the natural parent) may seek visitation with a child under A.R.S. Section 25-409.C. when certain facts and procedural requirements are met.  A grandparent or great-grandparent may seek visitation even without an in loco parentis relationship when those facts and procedural requirements are satisfied.  Id.  Why do I keep italicizing the word “seek”?  Because seeking and winning are two different things entirely.

It is extremely difficult for a third party to win visitation rights.  A.R.S. Section 25-409.E. indicates the factors the judge is to consider in deciding a third party visitation case, but here’s the kicker.  The court must give “special weight” to the legal parents’ opinion of what serves their child’s best interests.  While this language on its own seems rather benign, a 2016 Arizona Court of Appeals case has interpreted this language to mean that, if the legal parents are fit, the third party seeking visitation “must prove that [the parents’] decision to deny visitation would substantially impair the child’s best interests.”  Goodman v. Forsen, 239 Ariz. 110, 366 P.3d 587 (App., Div. 1, 2016).  Translation: unless you can prove the child’s legal parents are unfit, you’re probably not going to get visitation.

Legal Trends.    I believe the major trend in Arizona relative to third party rights is illustrated by the Goodman case, supra.   When the concept of grandparent and third party rights surfaced years ago, the pendulum swung too far in favor of allowing third party custody and visitation.  Goodman shows there is now a strong trend away from third party rights.   In Arizona, moving forward, fit parents will be able to make decisions regarding who their children see and do not see.  The law is increasingly disfavoring visitation rights for third parties when the child’s parents are fit and decide not to allow visitation.  Obtaining third party or grandparent visitation in Arizona will be extremely difficult unless the legislature changes the third party visitation statute or the Arizona Supreme Court overrules Goodman.  Awarding a third party custody or visitation rights will be reserved primarily for those rare situations where the third party has an in loco parentis relationship with the child and where the parents are proven to be unfit.

I will note, however, that since Goodman was decided, Division Two of the Court of Appeals has upheld an award of grandparent visitation on facts it found to be distinguishable from those in Goodman.  See Friedman v. Roels, 2 CA-CV 2016-0029 (Ariz. Ct. App. June 19, 2017).

Another trend I believe will be to “clean up” laws relative to same-sex spouses that are unconstitutional but still on the books.   And the only reason I address it in this post is because it applies to persons who used to be treated as third parties and now should not be–specifically the wives of women who have children during a same-sex marriage.  Despite gay marriage being legal nationwide for over two years now, some statutes remain which do not, by their terms, provide same sex-spouses the same protections as opposite-sex spouses.  These statutes are all probably unconstitutional and will likely be either rewritten by state legislatures or extended by court decisions to apply to same-sex couples as well as heterosexual couples.

An example is Arizona’s paternity statute–A.R.S. Section 25-814(A)(1), which creates a presumption that a man is a child’s legal father if the child is born to his wife during their marriage.  In a recent case, the Arizona Supreme Court  extended this presumption to apply equally to the wife of a woman who gives birth to a child during marriage.   McLaughlin v. Hon. Lori B. Jones, CV-16-0266-PR (September 19, 2017).   Under McLaughlin, when both spouses in a same-sex marriage consent to and participate in the artificial insemination process and intend to have a child together, the wife of the birth mother has all the legal rights of a parent.  She is not relegated to seek visitation as a third party.

© 2017 J. Kyle Scoresby, P.C. All rights reserved.