Third Party Visitation

The third-party visitation is a much easier standard to meet than the third-party placement and legal decision-making standard. But the statute itself can be confusing. Here are some issues to keep in mind about this statute:

• Open Class. Although the statute mentions grandparent visitation and in loco parentis visitation, it is actually a rather open class of persons who may file. As the statute allows “anyone other than legal parent” to file a petition. The statute’s limitations on filing are focused more on limiting the circumstances under which someone can file, not a limit on who can file. We mostly see third-party petitions from grandparents and former same-sex partners.
• No third party petitions when parents are married. A petitioner cannot be awarded visitation when the child’s parents are married.
• Adoptive Parents are considered to be married, even if adoptive parent is single. If a child is adopted, the child is considered to have been “born to the adoptive parent in lawful wedlock.” A.R.S. § 8-117. This prevents the child from being the subject of a third-party visitation statute. This statute applies even when the adoptive parent is single. See Sheets v. Mead, 238 Ariz. 55, 58, ¶ 16, 356 P.3d 341, 344 (App. 2015) (holding “that a child who is adopted before a visitation petition is filed is not eligible for nonparent visitation under § 25–409(C)(2).”).

A.R.S. § 25-409 (C) governs third-party visitation petitions. That provisions reads:

C. Pursuant to § 25-402, subsection B, paragraph 2,[1] a person other than a legal parent may petition the superior court for visitation with a child. The superior court may grant visitation rights during the child’s minority on a finding that the visitation is in the child’s best interests and that any of the following is true:

1. One of the legal parents is deceased or has been missing at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent’s location has not been determined and the parent has been reported as missing to a law enforcement agency.

2. 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.

3. For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months.

4. For in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.

A.R.S. § 25-409 (E) specifies the factors the Court will consider when ruling on a third-party petition for visitation. That provision reads:

In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents’ opinion of what serves their child’s best interests and consider all relevant factors including:

1. The historical relationship, if any, between the child and the person seeking visitation.

2. The motivation of the requesting party seeking visitation.

3. The motivation of the person objecting to visitation.

4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.

5. If one or both of the child’s parents are deceased, the benefit in maintaining an extended family relationship.

[1] For your convenience, we remind you that 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.”