If you are a grandparent, you may be entitled to visitation with your grandchild. The starting point is the United States Constitution. A major case, Troxel v. Granville, 530 U.S. 57 (2000), requires that the decision of the parent be given “special weight” when it comes to determining whether and when a grandparent is permitted to see their grandchild. However, this right is not absolute, and some Arizona appellate court decisions have clarified what the U.S. Supreme Court case means in practice.
There is a presumption that a fit parent acts in the best interest of his child. But this is a rebuttable presumption. The presumption can be overcome, depending on the specific situation.
Importantly, in recent years the Arizona Supreme Court rejected the argument that for a grandparent to overcome the presumption, the grandparent must show that “substantial harm” to the grandchild would result if there were no visitation or extremely limited visitation. This would have created an extremely high hurdle to overcome, and luckily our Arizona Supreme Court wisely refused to set the bar that high.
The grandparent visitation law in Arizona usually applies only if one of the legal parents is deceased or has been missing for three months; the child was born out of wedlock and the child’s legal parents are not currently married to each other; or the marriage of the parents has been dissolved.
After one of the above conditions has been met, you will then turn to the issue of whether grandparent visitation should be awarded and to what extent. An argument can be made under the law that the grandparent is absolutely entitled to visitation if logistically possible, appropriate, and the child is residing with the parent through whom the grandparent claims a right of access to the child.
In case the court rejects the argument of an automatic entitlement to grandparent visitation (this argument has not, as of early 2021, been addressed by the Arizona appellate courts), the grandparent should also show that grandparent visitation (or even great-grandparent visitation) should be ordered even under the stricter permissive standard because the statutory factors have been satisfied.
The judge is supposed to look at all relevant factors, but some of the required factors are the historical relationship between the child and the grandparent; the motivation of the grandparent in seeking visitation; the motivation of the parent objecting to visitation; the quantity of visitation time requested and the potential adverse impact it could have; and the benefit of maintaining a relationship with the deceased parent’s extended family (obviously, only if that parent is deceased).
It is also important to keep in mind that if you are a grandparent you must file your request for visitation in the same court case that the grandchild’s parents got divorced in if the parents are divorced.
Finally – and this is very important – you will have a major advantage if both parents are alive and one of them sides with you. In that case, the presumption discussed above – that a fit parent acts in his child’s best interest – may not apply (because it has been “canceled out”), and it should then become much easier to obtain visitation with your grandchild.
Grandparent cases, although notoriously difficult and uncertain, are becoming increasingly common, and it is important to know how to navigate them properly.
Please contact Thomas Law Office if you would like to explore whether you have a good case for grandparent visitation.