Schedule a consultation with us today!
free consults for savvy couples
free consults for savvy couples
There are often many people in a child’s life that love and care about their welfare. When discussing third party rights, the two most common situations clients bring to Simonds Law Group, PLLC are: (1) when mental health, drug and alcohol addictions, and/or domestic abuse create situations where parents are unable to care for their child (parental fitness issues), and (2) when grandparents, aunts and uncles, former step-parents, or caretakers become estranged from the minor child’s parents, but still want to see the children (third party visitation).
Arizona case law strongly supports parents maintaining legal rights over their children. In fact, under ARS 25-409, there is a “rebuttable presumption” that a parent will serve the child’s best interests. This includes decisions about which family members and friends a parent thinks their children should see or have a relationship with.
There are situations where this presumption can be overcome – the party seeking third-party rights must show, by clear and convincing evidence, that a parent’s ability to make legal decisions “is not consistent with the child’s best interests.”
Under the first scenario above, when parents are alleged to be unfit, there are generally two directions a case may go.
First, the Department of Child Safety (DCS) could be involved and action can be filed in juvenile court. The juvenile court action could include temporary parenting time orders up to and including severance of parental rights entirely. Juvenile court jurisdiction supersedes family court. That means an order from the juvenile court is going to trump family court. If DCS files a petition in juvenile court, there is not a remedy in family court, so long as the juvenile court orders are in effect.
The second direction parental fitness issues can take occur when DCS does not file an action in juvenile court. In this situation, an action can be filed in family court. In a family court action, a third party may file a Petition for Third Party Rights and allege parental fitness issues. A judge would have to determine, recognizing the presumption that parents serve the best interests of their children, that the parents are not making decisions consistent with the child’s best interests.
When family members or close caregivers want to have an enforceable visitation schedule, a petition must be filed in court. A judge will hear evidence and decide whether ordering visitation over a parent’s objection is in the child’s best interests. It is also possible to reach agreements regarding third-party visitation schedules. Simonds Law Group, PLLC can assist in communicating with the child’s parents to determine if any arrangements are possible.
Third-party rights are discussed in ARS §25-409. Requesting third-party visitation is an uphill battle: Arizona law requires a judge to give special weight to the legal parents’ opinion of what serves their child’s best interests. Basically, if a parent does not want someone to see a child, the court is to presume that the parent is entitled to that decision.
In some circumstances, third parties can challenge parents’ decisions to withhold visitation. After the petition is filed and the judge hears the evidence, the Court will decide what is in the child’s best interests. The factors a judge must consider making the best interest determination are found in ARS 25-409(E) and include:
The historical relationship, if any, between the child and the person seeking visitation.
The motivation of the requesting party seeking visitation.
The motivation of the person objecting to visitation.
The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
If one or both of the child’s parents are deceased, the benefit is in maintaining an extended family relationship.
Presenting a favorable case for third-party rights requires preparation, a thorough understanding of the best interest factors, and quality presentation of evidence. Simonds Law Group, PLLC has the experience necessary. While still a law clerk, Kate researched and helped present at both the trial and appellate courts, the landmark case in Wisconsin that established third-party grandparent visitation rights. Since then, Simonds Law Group, PLLC has litigated and successfully resolved many third-party rights cases. Contact us today to discuss the merits of your request for third-party rights.
Have questions about Divorce in a Day? Our knowledgeable team is here to help. Contact us for more information and guidance on your collaborative divorce journey.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.