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Q: Grandparent Rights - For Expertlaw please ( Answered 5 out of 5 stars,   2 Comments )
Question  
Subject: Grandparent Rights - For Expertlaw please
Category: Relationships and Society > Law
Asked by: crabcakes-ga
List Price: $5.00
Posted: 27 Mar 2005 12:31 PST
Expires: 26 Apr 2005 13:31 PDT
Question ID: 501094
I have two questions:

1)I'm looking for documents or a way to look them up myself, on
grandchild custody by grandparents, in Maricopa County, Arizona.

I'd particularly like documents (Or where I can dig through them
myself - online is preferable, but I'm more than willing to go to the
law library if I know what to look for) about the reversal, overturn,
bending of, ignoring of, or 'work-around' of the Troxel v. Granville,
120 S.Ct. 2054 (2000) case.

2) Does the fact that a grandfather who is not a biological
grandparent, but one who was and is married to the biological
grandmother for 15 years (well before the grandchildren were born),
loves the grandchildren immensley, and is a "grandfather by affinity
only" according to the opposing side, still 'count' as a grandfather
in court?  This grandfather takes the role of grandparent seriously!

He made or purchsed all furniture for the children, most of their
clothes, took them to school,paid for doctor and dental visits and
medicines, is well known and liked by school personnel, and
financially supported and loved the grandchildren's mother. The
children do not understand "biological". They know and love, and very
much miss their "step" grandfather.
What is the court's view of this kind of grandfather?  

Thank you very much! 
Sincerely, Crabcakes
Answer  
Subject: Re: Grandparent Rights - For Expertlaw please
Answered By: expertlaw-ga on 29 Mar 2005 05:35 PST
Rated:5 out of 5 stars
 
Dear crabcakes,

You may review the relevant legislation and recent case law online. It
may be possible for a step-grandparent to claim a right to visitation,
if certain statutory criteria are met, although it does not appear
that it would be easy to satisfy those criteria in a typical case.

I. Arizona Grandparenting Time Legislation

In relation to your first question, Arizona has legislation which
regulates the granting of visitation rights to a grandparent (or third
party). You can review that legislation online on the Arizona State
Legislature website:
http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp

Specifically, there are two statutes. The first addresses the
visitation rights of grandparents. The second addresses visitation
claims by any other parties.

Arizona Revised Statute 25-409 details when a grandparent may seek
visitation with a grandchild, and factors which must be considered by
a court in making such a grant. You may review the full text of the
statute on the Arizona State Legislature website:
http://www.azleg.state.az.us/ars/25/00409.htm

Arizona Revised Statute 25-415 details when any other person may seek
visitation rights with a child. This statute holds that if "a person
stands in loco parentis to a child" may be granted visitation if the
person meets the requirements set forth in ARS 25-419, and if certain
additional criteria are met. In relation to this statute, "'In loco
parentis' means a person who has been treated as a parent by the child
and who has formed a meaningful parental relationship with the child
for a substantial period of time." This statute is also available on
the Arizona State Legislature website:
http://www.azleg.state.az.us/ars/25/00415.htm

The Arizona Court of Appeals has recently interpreted those statutory
provisions, making specific mention of the rights of
step-grandparents. In Riepe v Riepe, 208 Ariz. 90; 91 P.3d 312 (2004),
the First Circuit of the Arizona Court of Appeals describes the
legislative history of ARS 25-415,

=======================
P20. The legislative history of  25-415 further supports a conclusion
that in loco parentis status is not tied to the number of involved
legal parents or gender. As the Dissent explains, PP 79, 85, infra,
the legislature enacted  25-415 in 1997 in response to the supreme
court's decision in Finck v. O'Toole, 179 Ariz. 404, 880 P.2d 624
(1994), which held that the superior court was not authorized to grant
visitation rights to step-grandparents who stood in loco parentis to a
child. In Finck, the court noted that the legislature had only
provided procedures for awarding visitation to noncustodial parents,
grandparents, and great-grandparents. Id. at 407, 880 P.2d at 627. In
light of the legislature's specificity in listing the classes of
parties entitled to visitation, the court reasoned that the
legislature did not intend to authorize visitation for unspecified
third parties, including step-parents and step-grandparents. Id. In a
special concurrence, Justice Zlaket speculated that the legislature
had not consciously intended to exclude step-parents or
step-grandparents from obtaining visitation with children to whom they
stood in loco parentis. Id. at 408, 880 P.2d at 628. Consequently, he
stated that the issue "cried out for legislative clarification." Id.

P21. In response to Finck, rather than simply adding step-parents and
step-grandparents to the classes of parties entitled to petition for
visitation, the legislature enacted  25-415(C) to broadly provide
that the court may award reasonable visitation rights to persons
standing in loco parentis to a child, including, presumably,
step-parents and step-grandparents, subject to satisfaction of the
listed requirements. By doing so, the legislature authorized the
superior court to consider each unique circumstance and award in loco
parentis visitation when appropriate. The legislature did not
constrain the court's discretion by imposing additional limitations
relating to gender or the quality of the child's relationship with his
legal parents, and the Dissent errs by seeking to impose such
constraints. n4 See State v. Averyt, 179 Ariz. 123, 129, 876 P.2d
1158, 1164 (App. 1994) (court cannot interpret statute to insert words
of limitation that the legislature has expressly omitted).
=======================

You may review that case online through a research service such as
LexisOne (free registration required).
http://www.lexisone.com/

First Circuit Court of Appeals opinions are also available for
browsing, in PDF format, through their website:
http://www.cofad1.state.az.us/opinionfiles/opidx.htm

The Riepe case is available on the First Circuit Court of Appeals
website through the following link:
http://www.cofad1.state.az.us/opinionfiles/CV/CV030184.pdf

As the Riepe case was decided only last year, it reflects the
post-Troxel interpretation of Arizona's grandparental visitation laws.


II. Rights of the Step-Grandparent

In the language quoted above, the Riepe case sets forth how the
Arizona courts and legislature have addressed the rights of
step-grandparents, through ARS  25-415(C). That would require the
step-grandparent to establish that he stands in loco parentis - that
is, that he "has been treated as a parent by the child and who has
formed a meaningful parental relationship with the child for a
substantial period of time." The language of the clause is as follows:

=======================
The superior court may grant a person who stands in loco parentis to a
child, including grandparents and great-grandparents, who meet the
requirements of  25-409 reasonable visitation rights to the child on
a finding that the visitation is in the child's best interests and
that any of the following is true:

1. One of the legal parents is deceased or has been missing at least three months.

2. The child's legal parents are not married to each other at the time
the petition is filed.

3. There is a pending proceeding for dissolution of marriage or for
legal separation of the legal parents at the time the petition is
filed.
=======================

The key language is that the third party's role must be parental, not
grandparental. Your description of the step-grandfather's extensive
role suggests that it may be possible to make such a claim, provided
the other statutory criteria are met (i.e, one of the parents is
missing or deceased; the legal parents are not married to each other
at the time the petition is filed; or there is a pending petition for
dissolution of marriage by the child's parents at the time the
petition is filed).

In relation to any claim by the step-grandfather, the following
language from Riepe will likely be helpful:

=======================
P10. Section 25-415(G)(1) does not require a person seeking in loco
parentis visitation to establish that he or she has a parental
relationship with a child that replaces that child's relationship with
a legal parent. Similarly, the petitioning party need not show that
his or her relationship with the child is superior to the child's
relationship with one or both legal parents. Rather, to establish in
loco parentis status, a non-parent must prove that the child (1)
treated that person as a parent and (2) formed a meaningful parental
relationship with that person for a substantial period of time. A.R.S.
 25-415(G)(1).
=======================

As previously suggested, most step-grandparents would have difficulty
establishing that they stand in loco parentis, that the circumstances
permitting a petition under ARS  25-415(C) exist, and that they also
satisfy the criteria of ARS  25-419. However, under the statue as
interpreted in Riepe, it is possible for a step-grandparent to obtain
visitation when those criteria are established to the satisfaction of
a court.


Research Strategy

Google Search: Arizona Statutes
://www.google.com/search?q=arizona+statutes

As a result of that search I went to the Arizona State Legislature
website, and searched their "Marital and Domestic Relations" statutes
for "grandparent".
http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp

Once I had identified the relevant statutes, I browed the section for
additional materials and definitions. I next checked the current
interpretation of the statutes by searching recent Arizona case law
for "25-415" and "25-419" on LexisOne.com
http://www.lexisone.com/


I hope you find this information helpful,

- expertlaw
crabcakes-ga rated this answer:5 out of 5 stars and gave an additional tip of: $40.00
Just what i was hoping for. Thank you so much!

Comments  
Subject: Re: Grandparent Rights - For Expertlaw please
From: lrulrick-ga on 27 Mar 2005 16:11 PST
 
Crabcakes-

I find your question very interesting and hope that although I am not
a "legal expert" I do like to dig into the law. And luckily your
question comes after I have done some personal investigating into a
step parents rights for visition.

Persons who have established a long term loving relationship with
children have though not a parent (either step relative, or extended
family) may claim that visitation is a fundimental right that if
denied could cause detriment to the childs mental well being. Although
not all states allow for this. I have found many references to the
case you sited... here being a list of them. Sorry but you will have
to copy and paste the links.


http://supct.law.cornell.edu/supct/html/99-138.ZS.html
http://www.antipeonage.0catch.com/01-35459brief.htm
http://www.parentsrights.org/states/az/az101101.html
http://www.parentsrights.org/states/in/in71101.html
http://parentsrights.com/state_caselaw/AR_Linder.htm
http://www.stompoly.com/article_visitation.htm
http://www.az-probate.com/2001/Issue827.html
http://www.grandparentsrights.org/derosebrief.htm
http://www.child-custody-info.com/Custody-Info/az-grandparent-visitation.html
http://www.wilcoxlegal.com/non-parent-child-custody001.html
http://www.usd.edu/elderlaw/archives/grandparent_visitation.htm


What you are dealing with here is truely a matter of public opionion.
First if the child lives with the parent- theres always the fight that
the parent should have the legal right to decide whom their child
sees. I must say I am on that side of the fence. I have an ex inlaw
who has not seen my child in 5 years. My child has no idea who his
person is and yet they now want to pop back into the childs life. This
causes even more of an issue because the child is not aware that my
husband is not her real father. I feel I have a duty to make the
disision I feel best for my child. The grandparent will not be seeing
her. On the other hand- if I die tommorrow I do not want a man my
child has never met taking her away from the only family she has ever
known, there fore I have perpared a list of cases that will help
legally keep her with my husband should anything ever happen to me. So
I see both sides of this issue you are asking about. I would recommend
that you do a lot of referencing case law on third party rights to
children. You did not mention if the child has been raised by you, if
there is a divorce in process thus removing you from the childs life,
if the child is in a single parent home, whos divorcing if anyone and
who has custody of chlid now- or what the back ground sitation is
regarding the legal status of the child in regards to yourself. This
information may be helpful. I have around 150 links to various sites
that may provide some useful information for you, giving case law,
psychiatrist opionions, and such. IF you would like these I would
gladly provide them. Most of the information that I have keep
reference to supports the third party motion to custody/ visitation of
childern. So there would be little supporting the other side to the
matter.

lry
Subject: Re: Grandparent Rights - For Expertlaw please
From: crabcakes-ga on 29 Mar 2005 00:04 PST
 
Thank you lrulrick, for your insights. Some of the links you supplied
were very helpful. I was not aware that this issue is, sadly, such a
common one.
Sincerely, Crabcakes

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