Third-Party Visitation Rights

A.R.S. § 25-409 is the third-party rights statute. It sets two different analyses one for visitation, and another for placement and/or legal decision-making. Arizona allows third party individuals to Petition the Court for the following:

• Placement of the minor child(ren) in the home of the third party. This includes the third party being awarded parenting time and decision-making authority; or
• Visitation with the minor child(ren).

Third party cases are atypical family law cases. In a divorce or paternity case, the focus will be on the child’s best interests where both parties start on equal footing. Third parties face a different situation. In third party case, the parents have the advantage, and the scope now includes the parent’s rights. This is because a mother and father have an equal Constitutional right to the care, custody, and control of their children. A third party has no such right. These rights are protected in the third party’s right scheme by the rebuttable presumption in legal decision-making and placement cases, and the special weight provision in visitation cases.

Third Party Placement or Legal Decision-making

A.R.S. § 25-409 (A) governs third-party placements. That provision reads:

Pursuant to § 25-402, subsection B, paragraph 2, [1] a person other than a legal parent may petition the superior court for legal decision-making authority or placement of the child. The court shall summarily deny a petition unless it finds that the petitioner’s initial pleading establishes that all of the following are true:

1. The person filing the petition stands in loco parentis to the child.

2. It would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision-making.

3. A court of competent jurisdiction has not entered or approved an order concerning legal decision-making or parenting time within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.

4. One of the following applies:

(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.

(c) A proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.

All four elements must be met. Otherwise, the Court must “summarily deny” the petition. We next turn to each of the four elements:

1. In loco parentis means that the petitioner is like a parent to the child. They have been doing things that a parent would normally do—i.e., they are providing and caring for the child. The situation where we most commonly see this is where a grandparent is raising the child because the parents are making poor choices, such as abusing drugs. In those instances, it is quite easy for a grandparent to meet the in loco parentis standard.
2. The “significantly detrimental” standard shows deference to the parent’s Constitutional rights, discussed more fully below. Third-party petitions are not granted just because it would be better for the child to live with a grandparent. They are granted when it would be significantly detrimental for the child to remain in the parents’ care. Generally, third party placements will not happen unless the child poses a significant danger to the child.
3. The third element protects against endless litigation. It guards against dual proceedings. That is, if a dissolution is pending, the third party must file in that case. Additionally, it prevents retaliatory findings. It prevents the situation where grandparents file for custody because their child (the child’s parent) just lost his or her custody case.
4. The fourth element essentially creates a marital exception to third party petitions. If the parents are still married to each other, the petition will be denied.

Rebuttable Presumption. If all four elements are met, the case may be set for trial. At trial, the petitioner must rebut the presumption that awarding a parent sole legal decision-making is in the child’s best interests. See A.R.S. § 25-409 (B). The petitioner must rebut this presumption with clear and convincing evidence.

[1] A.R.S. § 25-402(B)(2) reads: “A person other than a parent, by filing a petition for third party rights under § 25-409 in the county in which the child permanently resides.”