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Originally Posted On: https://thevalleylawgroup.com/blog/grandparents-visitation-rights-az/

How To Establish Grandparent Visitation in Arizona

When one or both parents are absent, it is common for grandparents to step in and help with the upbringing of their grandchildren. Unfortunately, even under these circumstances, grandparents do not have court-enforceable rights to see their grandchildren without taking specific steps with the help of a family law attorney. If you are seeking grandparents’ rights in Arizona, you can work with a grandparent’s rights attorney who can file the necessary paperwork to begin the process of establishing formal custody rights to your grandchildren.

Learn more about what to expect with The Valley Law Group’s guide to establishing grandparent visitation in Arizona.

What Are My Visitation Rights as a Grandparent in Arizona?

The Arizona Family Court prioritizes the best interests of the children involved in any family court case. In most circumstances, this means prioritizing the rights of the legal parents. These are almost always the biological parents, although adoptive parents are also afforded the same rights as biological parents.

The Troxel Decision Means States Do Not Automatically Presume Grandparents’ Visitation Rights

While biological parents have the presumption of visitation rights in most cases, grandparents do not. In fact, a US Supreme Court decision known as the Troxel Decision has outlined a precedent for grandparents seeking visitation rights with their grandchildren.

In it, the court acknowledged the value of grandparents spending time with their grandchildren but maintained that grandparents do not hold the same presumption of rights as parents. The decision stated that parents have the right to raise their children the way they deem fit, so long as they are acting in the best interests of their children. Parents who have an “intact” relationship with their children and who are deemed fit have the right to allow or refuse grandparent visitation, and local and state courts have very limited means of forcing such parents to allow visitation.

Cases Where Grandparent Visitation Can be Court-Ordered

There are, however, cases in which a grandparent can gain court-ordered visitation rights to their grandchild.

One example involves situations when one or both parents are absent from the child’s life. In those cases, the courts can consider which other parties (usually a close relative) could fill the role of the missing parents. Other possible situations where a grandparent could seek visitation rights to a grandchild include situations where restricting such visitation could harm or endanger the child.

These situations include:

• Parental Consent – When both biological parents consent to an adoption, this can allow the grandparent to request visitation rights to the child.
• Parental Mental Illness – A court may determine that both biological parents are unfit or unable to care for the child, often due to issues such as substance abuse, mental illness, or neglect. In those cases, a grandparent may be awarded visitation rights so they can help raise the child.
• Parental Death – In cases where one or both biological parents are deceased, a grandparent can petition the courts to gain visitation rights to the grandchild as a means of taking over the responsibilities of the deceased parent or parents.

• Abandonment – When biological parents abandon the child (typically meaning they have not provided financial support or maintained a relationship with the child for a specified period), the grandparents can ask the courts to grant them visitation rights to the child.
• Parental Incarceration – When both biological parents are incarcerated for an extended period, the courts may find that granting grandparent visitation rights is in the child’s best interest.

Even when the grandparents have lawful grounds for gaining visitation rights to their grandchildren, the process can be complex. It is advised to hire a family law attorney to determine grounds for visitation, handle the petition filing, and complete the other steps required to gain court-enforceable rights to visit and raise their grandchildren.

How to Establish Visitation Rights in Arizona

Arizona law establishes the path for natural or adoptive grandparents to seek visitation rights with their grandchildren. Once certain conditions have been met, an attorney representing the grandparent can file a petition in family court. First, it is crucial to note that the child must have lived in Arizona for at least six months, although exceptions exist.

Then, the grandparent must meet one of these three conditions. 

• The child’s parents have been divorced for at least three months
• One parent is either missing or deceased for three months or longer
• The child was born out of wedlock, and the parents are still unmarried

Courts prioritize the child’s best interests, which can be challenging to prove. Your attorney can carefully review your case beforehand to see if you meet the requirements to petition for visitation rights to your grandchild.

Factors the Court May Consider Before Granting Visitation Rights

When determining whether to award custody rights to one or both grandparents, Arizona law mandates that the court must consider all relevant factors.

 These factors include:

• The historical relationship between the child and the person seeking visitation
• The motivation of the requesting party
• The motivation of the person denying visitation.

• The quantity of visitation time requested
• Any potential adverse impact that the visitation will have on the child’s normal activities
• If one or both of the child’s parents are deceased, the court will assess the benefit of maintaining an extended family relationship.

By considering these elements, the court aims to make a decision that serves the best interest of the child. The courts understand that children need consistent parental figures in their lives to develop into well-adjusted individuals.

Custodial Rights Via Guardianship

Guardianship offers another legal route that can help grandparents gain rights to grandchildren. However, guardianship rights extend much further than simple visitation rights and involve custody of the children in question. Your attorney will work through the family court and sometimes probate court when pursuing this option.

The process begins when your lawyer petitions the court in the county where your grandchild resides. Your lawyer must notify the child’s parents (if they are living) and other interested parties about the guardianship petition.

Guardianship is typically only granted in situations where the biological parents are no longer living, no longer wish to parent their child, or are found to be unfit due to imprisonment, drug use, mental illness, or other situations that prevent the parents from caring for their child.

The biological parent’s rights must be terminated or suspended before a non-parent can seek guardianship. As part of the process, the courts typically conduct an investigation into the child’s living conditions and those of the interested parties.

In some cases, parents can voluntarily relinquish guardianship to another party through consent guardianship. Children who are 14 or older can nominate a guardian for themselves. Once guardianship has been granted, the grandparent has legal grounds to visit their grandchild.

Custodial Rights Via Adoption

Grandparents can also petition to adopt one or more grandchildren. Grandparents do not have to be certified adoptive parents vetted through the state of Arizona to adopt. With the help of a family law attorney, they can ask the court to grant temporary custody while the adoption process moves forward.

Grandparent adoptions generally follow similar steps as third-party adoptions:

1. Consult an Attorney – Although petitioners are not required by law to hire an attorney, having legal representation is highly advisable. Look for an attorney who has experience helping grandparents navigate the adoption process successfully.
2. File a Petition for Adoption – Your attorney can file a petition for adoption with the court that includes information about you, the child, and the reasons for the adoption.
3. Obtain Consent – You will likely need to obtain the consent of the child’s biological parents if they are still living. The court may also terminate parental rights if it determines that it is in the best interest of the child; however, the court does not terminate parental rights without compelling reasons, like child abuse or neglect, child abandonment, mental illness, or substance abuse. Your lawyer can help present substantial evidence to support your petition.
4. Home Study – A social study of the home may be conducted to assess your suitability as an adoptive parent. However, the court may decide not to conduct the study or limit its scope based on the specific circumstances of the adoption.
5. Background Checks – Officials will conduct a background check, including searches of your state and federal criminal records. Additionally, officials will review records from the Department of Child Services to ensure the safety and well-being of the child.
6. Court Hearing – Throughout the adoption process, there will be multiple meetings where your lawyer updates the judge. Hearings allow the judge to review the adoption petition, home study (if conducted), and background checks. The judge will then decide whether to approve the adoption.
7. Adoption Finalization – If the court approves the adoption, a finalization hearing will be scheduled. Once finalized, you will receive an adoption decree, and the child will legally become your son or daughter.

As with guardianship and establishing visitation rights, the courts will allow grandparents to have court-enforceable rights to adopt their grandchildren when doing so is in the child’s interests. While that may seem clear to grandparents who want to spend meaningful time and help with child-rearing, presenting the right arguments before a judge requires experienced legal counsel.

The most clear route to adoption is when the living parent or parents voluntarily relinquish their parental rights. Even when the parents do not voluntarily relinquish their rights, the courts may rule that allowing the grandparent to adopt their grandchild serves the child’s best interest.

What Challenges Might a Grandparent Face When Establishing Visitation or Custody Rights?

Often, the most significant obstacle you will encounter when seeking visitation is a situation where one or both biological parents or any party who has standing objects to your visitation rights. The courts do not terminate parental rights without good cause and will not interfere with a fit parent’s right to parent their child so long as they ensure their child’s best interests.

Even in cases where the parent is not actively fighting you in court, such as when they are absent or incarcerated, your attorney must still present compelling evidence that you are the best option or that the child’s biological parents should have their parental rights terminated.

The legal process of establishing custody rights can be both financially and emotionally taxing. Grandparents should be prepared for a potentially lengthy process, although hiring an experienced family law attorney can help shorten that timeline.

Grandparents may need to undergo background checks, including state and federal criminal records and Department of Child Services records, and a social study may be conducted. Although the legal process of adoption may seem lengthy, the court is interested in making sure that the child finds a stable and loving home.

With the proper legal counsel, you can meet the strict adoption requirements and gain custodial rights for your grandchild.

Tips for Finding the Right Family Law Attorney When Seeking Visitation Rights

If you are a grandparent looking to gain visitation rights over your grandchild, finding the right attorney is a critical first step in the process. Only some family law attorneys have experience helping grandparents get visitation rights. Depending on your situation, your attorney may need to choose between multiple legal processes that could involve the probate courts and family courts.

One of the first questions you should ask a potential grandparents’ visitation lawyer is how many grandparents have successfully helped gain visitation rights. If that is not an area of law they are familiar with, you could be risking your ultimate success in court.

During your consultation, describe your background and goals. The attorney should be able to listen attentively to your information before proposing potential legal strategies that can help you reach your goals. If the lawyer does not seem to be aware of the steps required to adopt your grandchild, take that as a sign that you may need to keep searching for the right attorney.

Grandparent Custody FAQs

How Do I File for Arizona Grandparents’ Rights and Grandparents Visitation?

There are multiple situations where a grandparent may qualify to petition the court for visitation. If you qualify because the child’s parents are unwilling, unable, or unfit to care for their children, you must petition for visitation, which involves filing several forms, submitting background checks and family studies, and participating in a court hearing. Petitioning for Arizona grandparents’ visitation rights often requires hiring an attorney who understands Arizona’s family laws.

Can You Sue for Grandparent Rights in Arizona?

Litigation offers one way for grandparents to gain custody or visitation over their grandchildren. However, the court will only grant such rights in cases where not doing so will endanger the child. The first step usually involves hiring an attorney who can review your case and recommend the right legal strategy to allow you to have court-enforceable visitation rights to your child.

How Do I Get Guardianship of My Grandchild in Arizona?

The most important step in pursuing guardianship of your grandchild in Arizona is hiring an attorney who understands the various ways grandparents get visitation rights over their grandchildren. In some cases, the biological parents may retain their parental rights even as you are granted visitation rights. In other cases, you can be given custodial or legal rights over the child.

What Types of Visitation Rights Have Courts Awarded Grandparents?

There are multiple paths to gaining visitation rights with your grandchild. By petitioning the court and meeting certain requirements, you can seek weekend visitation rights, every other weekend visitation, or another common schedule that meets the child’s needs. The specific schedule you are given depends on your goals and what the court allows.

It is important to note that guardianship and adoption allow for far more substantial physical custody rights. In some cases, your home may become the primary residence for the child.

Schedule Your Grandparent Custody Consultation Today

If you are a grandparent who has stepped up to help raise your grandchild, you may be able to pursue legal visitation, guardianship, or custody rights. You can improve the chances that you will be successful in your family court case by hiring an experienced and knowledgeable grandparents’ rights attorney.

The team at The Valley Law Group has helped many grandparents establish visitation, guardianship, or even pursue the adoption of their grandchildren. We can work with you to customize solutions to help you reach your personal goals in court.

To schedule your free grandparents’ rights consultation, contact our firm today.