Do Grandparents Have Rights?

We have all had family fights — disagreed with our parents or rebelled when we were teens and thought we knew everything — but what happens when that fight leaves the family in pieces?

Family PicnicWhen adults have disagreements, they are often caught up in the heat of the moment. They say things they don’t mean and they do things they would not otherwise have done. Sometimes this means parents deny grandparents’ access to their grandchildren. Unfortunately, parents are not often thinking of the effects that this denial may have on their children. Grandparents are often very involved in the upbringing of their grandchildren. This begs the question: do grandparents have the right to fight for time with their grandchildren?

In Arizona, there are circumstances in which grandparents have standing to fight for legal decision-making rights and placement of, or visitation with, their grandchildren. However, it is difficult to meet the standards of the court.  According to the U.S. Supreme Court, parents have a fundamental right to raise their children as they see fit. What this translates to is that there are a number of legal hurdles that grandparents must overcome before they are granted any rights with respect to their grandchildren.

According to A.R.S. § 25-409(A), to gain legal decision-making rights and placement for a grandchild over the objection of the parents, the grandparents would have to meet a number of prerequisites. First, the grandparents have to prove that they have been treated as a parent by the child and have formed a meaningful relationship with the child for a substantial period of time.

Then, the grandparents must show that it would be significantly detrimental to have the child remain in the parent’s home. Those requirements are just a part of the bigger picture a grandparent must paint in order to gain legal decision-making rights and placement of their grandchildren. Arizona has adopted these same standards to protect parental rights.

Grandparents

States must balance the delicate interests of parents and grandparents at stake and try not to infringe on the parent-child relationship if it is not necessary. This is because courts are under the general assumption that a parent is fit, and a fit parent is able to make all necessary decisions for their children without intervention. Disproving fitness is often as onerous as proving that unicorns do not exist. Having an attorney experienced in these matters can be crucial for a grandparent fighting for legal decision-making rights and placement of grandchildren.

Alternatively, grandparents can file for visitation under A.R.S. § 25-409(C) (rather than trying to remove the child from the parent’s care). The hurdles grandparents must overcome for visitation are slightly lower compared to that of legal decision-making/placement rights; however, there is still a substantial amount of proof needed to prove it is in the child’s best interest to have visitation with the grandparents.

Let’s look at an example. If a Tempe grandmother wanted to petition for visitation rights with her grandson, she would have to file a petition with the Maricopa County Superior Court.  She would first have to establish that either one of the parents was deceased, or that the child was born out-of-wedlock and the parents are not married, or that the parents are divorced.  After meeting this initial requirement, she then has to prove her relationship with the child and why it is in the child’s best interest to have her continued presence in his life. She would have to offer evidence of her historical relationship with him and establish his reliance on her presence, explain her motivation for the request for visitation, and how the requested visitation may impact the child’s customary activities, among other ‘best interests’ factors.

Grandparent with Mother and ChildrenIf she can show that she has been a substantial part of the child’s life and the child would suffer if she were no longer able to see him, the court may decide that it would be in the child’s best interest to have continued visitation. Though this may not seem like a substantial burden in every scenario, proving the best interest of the child can be a tricky topic to maneuver around.  Courts are highly reluctant to interfere with parenthood, even if the result is to the detriment of grandparents and children who may enjoy their company. Again, having an attorney experienced in these matters can be crucial for a grandparent fighting for visitation with their grandchildren.

Although Arizona does provide some options for grandparents seeking time with their grandchildren who have been cut off from them, it does not and cannot afford the rights some grandparents wish to have. Sometimes the best option is to seek mediation or family counseling and try to reconcile the situation.  Sadly, however, mediation may not resolve the problem, leaving grandparents to decide whether a contentious legal battle is worth the further harm it may cause to their relationship with their children.

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