Wednesday, December 15, 2010

GRANDPARENTS' RIGHTS - Are You Being Deprived of Visitation With Your Grandchildren?

There is nothing more heartbreaking than a grandparent who is not allowed to have contact with the grandchildren, especially during the holidays.  The relationship between a child and his or her grandparent is a special kind of bond, one that cannot be replaced.  For a grandparent to be unfairly “cut out of the picture” can be devastating for both the grandparent and the child. 

Arizona law provides that grandparents do have a legal right to visitation with their grandchildren under certain circumstances.  Arizona Revised Statutes, Section 25-409 spells out the criteria that the courts use to determine whether grandparent visitation would be appropriate in a particular case; and the appellate courts have published cases which interpret the statute and provide guidance to help the trial judge make a decision.

There is a presumption that a fit parent’s decision to deny or limit visitation was made in the child’s best interests.  However, that presumption can be rebutted by evidence to the contrary.

A.R.S., Section 25-409(A) provides that “The superior court may grant the grandparents of the child reasonable visitation rights . . . on a finding that the visitation rights would be in the best interests of the child and any of the following is true:

1.                  The marriage of the parents of the child has been dissolved for at least three months.
2.                  A parent of the child has been deceased or has been missing for at least three months . . .
3.                  The child was born out of wedlock.

Section (C) of the statute provides that “In determining the child’s best interests the court shall consider all relevant factors, including:

1.                  The historical relationship, if any, between the child and person seeking visitation.
2.                  The motivation of the requesting party in seeking visitation.
3.                  The motivation of the person denying 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 dead, the benefit in maintaining an extended family relationship.

To obtain court-ordered visitation over the objection of a parent, the grandparent must fall within one of the three categories listed in Section A of the statute, above; and the grandparent must be able to prove that visitation would be in the child’s best interests.  If the grandparent can demonstrate that he/she has maintained regular contact and has a loving and appropriate relationship with the child, then the prospect of obtaining visitation is greatly enhanced.  When one of the parents has died, the Court will give special consideration to protecting the relationship between the child and the deceased parent’s family. 

The Arizona courts have ruled that while a trial judge has considerable discretion in shaping a grandparent visitation order, the court is not free to simply second-guess the decision of a fit parent as to visitation rights.  Where a parent has agreed to allow some reasonable contact between the grandparents and the children – even if it is not as much time as the grandparents would like – the courts will usually not interfere with the parent’s decision.  On the other hand, where a parent refuses to allow any contact at all, the Court has the power to step in and order the parent to let the grandparents spend time with their grandchildren on a regularly scheduled basis.

These are difficult and complex cases.   If you are in need of a grandparents’ rights attorney – or if you are a parent who believes that contact with a grandparent would be potentially harmful to your child – then do not hesitate to contact the law firm of Gary J. Frank P.C. for a consultation.  You can reach us by telephone at 602-383-3610 or by email through our website at http://www.garyfranklaw.com/.   Contact us today.