After a divorce, it would be ideal in most cases if the children could still spend time with their grandparents and extended family. Unfortunately, some parents don’t want that contact.
In some cases, grandparents or can be completely cut off from their grandchildren. This often occurs when a married couple agrees to end grandparent visitation, when there has been a divorce or breakup, or when one of the parents dies.
Parents do have a right to refuse visitation between their children and the grandparents. However, Arizona law allows grandparents and some other third parties to petition for court-ordered visitation when that visitation would be in the children’s best interests.
In other cases, grandparents can even petition for parental decision-making authority and parenting rights – what we used to call “child custody.” This is allowed in cases where the grandparent can show by clear and convincing evidence that the children remaining in custody of their legal parent would not be consistent with the children’s best interest.
Seeking grandchild visitation
When Arizona courts consider a grandparent visitation petition, they are supposed to give extra weight to the parents’ opinion about whether that visitation would be in the children’s best interest. However, that can sometimes be overcome. The courts will also consider other factors, such as:
- The existing relationship between the grandparents and the grandchildren
- The motivation of the grandparent in seeking visitation
- The motivation of the person objecting to the visitation
- The amount of visitation time being requested and any adverse impact it could have on the grandchildren’s customary activities
- If one or both of the parents are deceased, the benefit of maintaining a relationship with the grandparents and extended family
Where possible, the grandparent’s visitation will be scheduled during their child’s parenting time.
There is often a strong argument to be made that grandparents who have a strong, positive relationship with their grandchildren should not be excluded from their lives. Grandparents can provide many benefits to their grandchildren, including a connection to the past and to extended family. They can make the child feel part of a large and loving family.
Seeking parental rights over your grandchild
As we mentioned, it is sometimes possible to get parental decision-making authority and parenting time (parental rights) over your grandchildren. That is only allowed when these four tests are met:
- The grandparent stands in loco parentis (like a parent) to the child
- It would be significantly detrimental for the child to remain or be placed with their legal parent
- Generally, a year has passed since the last parenting order was entered (unless the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health)
- One of the following is true: One legal parent is dead; the child’s parents are not married; or the legal parents are currently involved in divorce or legal separation proceedings
Once these four tests are met, you still need to prove, by clear and convincing evidence, that having the child remain with a legal parent is not consistent with the child’s best interest.
Talk to an experienced family law attorney
Grandparenting issues can be quite complex, legally. It’s important to discuss your concerns and your goals with an experienced family law attorney so you can get a clear sense of how to proceed.