Many wonder if they are not a biological or adopted parent (legal parent) of a child, otherwise referred to as non-parents, do they have any rights to have court ordered visitation with a child with whom they share a close bond. The answer is yes. Arizona Revised Statutes Section 25-409 provides for the rights of third parties or non-parents regarding visitation.
Prior to January 1, 2013, a non-parent had to prove to the court that had acted as, or in the place of, a legal parent (called "in loco parentis") to establish any type of custody rights over a child. Even if one was able to meet this high burden, judges were limited in the type of relief they could grant to parties. After January 1, 2013, the statute still includes this basis for filing, but this is no longer the one singular basis to be granted visitation. The new law is much more flexible and creates a gateway for domestic and same sex partners, aunts, uncles, grandparents, and other 3rd parties to petition the court for visitation with a child. Specifically, if not proceeding under the basis of in loco parentis, subsection (C) allows for an individual to petition for visitation if any of the following is true:
•· One of the biological parents is deceased;
•· The child is born out of wedlock and the parents are not married; or
•· If the party is a grandparent and the parents have not been married for 3 months.
This has been a positive step toward ensuring that same sex couples raising a family, individuals raising a family choosing not to be married, and family members who have lost a sister, brother, daughter or son can ensure that their relationship with a child, niece, nephew, grandchild will continue with visitation in the event of family dissolution, estrangement or conflict. Just as in standard custody cases, the judges must determine what is in the best interests of the child. Although the statute became more broad, do not be fooled. Litigation followed the revised statute that established law that gives a heavy preference for the wishes of the legal parent. So, although you may think it is in the best interest of the child for you to have visitation, a judge must weigh this with a preference toward the wishes of the legal parent. This is a tricky legal rode down which a party must travel. For this reason alone, one should seek the knowledge and advice of a skilled attorney.
The attorneys at Lasiter & Jackson, PLLC have years of experience litigating non-parent custody and visitation issues. Contact the attorneys at Lasiter & Jackson, PLLC to discuss your rights under the law for third party visitation and your options to establish custody and visitation rights over a child.