Grandparents Should Not Be Afraid of the Legal System

According to the U.S. Census Bureau, approximately 1 in 3 grandparent-maintained households did not have a biological parent present in the household. In Arizona in 2000, households that had grandparents living with grandchildren was higher than the national average. It is clear to see that grandparents play an important role in the raising of their grandchildren, not only in Arizona, but across the nation. What happens when grandparents are put in a situation in which they must raise the children or simply want to visit their grandchildren? Grandparents must know that they have rights and should not be afraid of the legal system.

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Legal: The following topics can be discussed at a consultation with an attorney. They are crucial to understand and answer before you begin accruing substantial fees because the statutes only allow grandparents to assert rights in limited circumstances.

 

 

In Loco Parentis

  • A.R.S. §25-409 (“Custody by a Non-Parent”) states that “a child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found.” The court may deny a petition unless the pleadings establish various truths. One of the truths is that “the person filing the petition stands in loco parentis to the child.” In loco parentis means “in place of a parent” and is someone who has acted as a parent to the child at some point in time when the child’s actual parents were absent.

Dependency

  • Grandparents can file for a dependency petition if they feel their relationship with the child meets the statutory requirements. A.R.S. §8-841 states that any interested party can file to begin dependency hearings in juvenile court. A “dependent” child is one who does not have a parent or guardian willing to exercise or are not capable of exercising care and control of the child.

Termination

  • A.R.S. §8-537 states that there are 10 grounds for the termination of parental rights. A packet can be found on the Maricopa Superior Court website to file a petition for termination (or severance) of parental rights. In Troxel v. Granville, the Court held it is against the fundamental right of parents to rear their children for any person to petition for a court-ordered right to see a child over the custodial parents’ objection.

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Other considerations:

1.Whether the grandparent has the financial capacity to endure obtaining rights.

  • Obtaining court orders over a child often requires filing a law suit. With any legal situation, money is going to be a factor.

2.Whether the grandparent has the time to complete the legal process.

  • Law suits take time. There are statutory time requirements for many legal processes. Dealing with hearings, legal documents, and pushing papers through the legal system is not usually a swift process. Grandparents must be patient and understand that obtaining orders that protect the child will not happen overnight.

3. Whether the grandparent is prepared for the outcome—meaning the process could bring a family closer or create animosity.

  • Anytime family is involved, emotions are heavy. Family law directly affects people’s lives and relationships. You have to understand that obtaining court orders can have a positive or negative effect on the family situation and grandparents have to be prepared for either outcome. Grandparents must ask themselves if obtaining court orders is in the best interest of the child or children. If the answer is yes, know that the process is not necessarily going to be an easy one.
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