This is an update to a post I first wrote in 2016 and which I updated in 2019.  The original post and 2019 update appear below.

The Arizona Court of Appeals has again issued a published opinion addressing grandparent visitation rights in Arizona.  Borja grandparent visitation case.  In its opinion, published December 20, 2022, the Court of Appeals vacated the trial court’s grandparent visitation order and sent the case back to the trial court to craft a new visitation order which was “minimally intrusive” on the mother’s parental rights.

In the initial grandparent visitation case, the trial court awarded broad visitation rights to the paternal grandparents.  The paternal grandparents were awarded 51 visitation days per year.  They were also awarded visitation time on every major holiday and were given the right to choose when they would exercise their visitation time.  The trial court even ordered the mother to notify the paternal grandparents about the children’s activities in advance.  The Court of Appeals held that awarding such broad rights to the grandparents violated the requirement that grandparent visitation be “minimally intrusive” and that the trial court’s order violated mother’s constitutional rights to parent her children.

While the Court of Appeals upheld the trial court’s decision to award some visitation to the grandparents, it appeared to do so primarily because the mother and father disagreed about whether grandparent visitation should be ordered, and courts are required to give “special weight” to what both legal parents believe is in the children’s best interests.  Because the parents in the Borja case disagreed (mother did not want a formal visitation order for grandparents, but father believed that awarding some grandparent visitation would be good for the children), the Court found that “the parents’ conflicting opinions must give way to the Court’s finding on whether visitation is in the child’s best interests.”

This language implies that when a mother and father agree there should not be a grandparent visitation order, a court should not intrude and substitute its own judgment for that of the parents.  When legal parents agree that that grandparents should not receive visitation rights, the grandparents’ request will usually fail.

The Borja case reinforces my previously-held opinion about grandparents’ using the court process to seek visitation rights.   Most grandparent visitation cases will not succeed, especially when both legal parents oppose any formal grandparent visitation order.  In the rare event that grandparent visitation is ordered by a court, the amount of visitation awarded will usually be minimal.  In most cases, the better approach for grandparents is to “mend the fences” and pursue a relationship with their grandchildren without invoking the court process.

 

2016 POST AND 2019 UPDATE FOLLOW:

I am regularly asked by my grandparent clients whether they can seek court-ordered visitation with their grandchildren.  In most cases, the answer is “yes, you can.”  But whether grandparents should seek court-ordered visitation is another matter entirely.

A.R.S. §25-409(C) allows the court to award a grandparent visitation with a grandchild when the court finds that the visitation would be in the child’s best interests and that one of the following is true:

  • One of the legal parents 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 to each other at the time the petition is filed; or
  • The marriage of the parents of the child has been dissolved for at least three months.

In deciding whether grandparent visitation is in a child’s best interests, the court is required to give “special weight” to the legal parents’ opinion of what serves their child’s best interests and consider all relevant factors”, including five specific factors enumerated in A.R.S. §25-409(E)(1-5).

This area of the law can be rather technical and tricky.  Maybe for that reason, unfortunately, some grandparents get so caught up in determining whether they can pursue court-ordered visitation that they fail to consider whether they should.  Before initiating a legal action to obtain grandparent visitation rights, grandparents should carefully consider the potential impact the lawsuit may have on their child (the parent of their grandchildren) and on the grandchildren themselves.

It would certainly be appropriate for grandparents to seek court-ordered visitation where their child has passed away and the surviving parent is refusing to allow visitation.  Absent unusual circumstances, it is almost always in a child’s best interests to continue to have a relationship with the deceased parent’s side of the family.

Where both biological parents are living, however, bringing a grandparent visitation case can often destroy a grandparent’s relationship with her own biological child, the parent of the grandchild in question.  When a grandparent files a grandparent visitation case, she is suing her own child in addition to the other parent.  Both parents are adverse parties.

Most parents don’t take kindly to being sued by their own mother or father for visitation with their children.  Litigation of any kind between a parent and a child can cause deep familial divides.  It’s hard to imagine any litigation by a parent against her own adult child that would be more offensive to the adult child than a case to forcibly take away time with a grandchild.

With few exceptions, the better approach is one of reconciliation, love and support.  Instead of suing or threatening to sue for visitation rights, grandparents should make every effort to establish a positive and supportive relationship with the parents of their grandchildren.  When parents see the grandparents as a support and a help rather than a threat, parents are more likely to allow the grandparents time with the grandchild voluntarily.  Grandparents who aren’t a threat to their grandchildren’s parents are more likely to be allowed (by the child’s parents) to babysit, to have overnights and to have a greater role in their grandchildren’s lives than grandparents who sue for grandparent visitation rights in court.

Step-parents may also be able to seek and obtain visitation rights with their step-children following a divorce or the death of the biological-parent spouse.  Because of the lack of any biological or adoptive relationship, the jurisdictional requirements for step-parent visitation are somewhat different than those for grandparent visitation, and exploring those requirements is not the focus of this article.  When a step-parent sues for visitation, the step-parent is not suing a family member as in a grandparent visitation case, but even step-parents should attempt to obtain access to their step-children by cooperation and discussion before rushing into a step-parent visitation lawsuit.

2019 Update:  The trend in Arizona is for courts to not disturb the decision of a “fit parent” as to whether to allow visitation to a grandparent or a third party.  It is becoming increasingly difficult for grandparents and other third parties to win court-ordered visitation or custody rights in Arizona.  To discuss the facts of your specific case, please contact my office to schedule a consultation.

In sum, grandparents and step-parents are entitled to pursue visitation rights in Arizona when certain jurisdictional requirements are met.  Grandparents and step-parents should view the courts as a “last resort”, however, and should make every attempt to arrange for visitation informally before initiating litigation.  It is becoming increasingly difficult for grandparents and other third parties to win court-ordered visitation rights in Arizona.

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