Visitation and Access to Grandchildren Whose Parents are Divorced or Unmarried
In Arizona, the grandparent visitation statute provides that grandparents (and great-grandparents) may be granted visitation rights with their grandchildren in certain circumstances. The Court may grant a grandparent reasonable visitation, 1) if the visitation rights would be in the best interests of the child, and 2) any of the following are true:
- The marriage of the parents of the child has been dissolved for at least three months;
- A parent of the child has been deceased or missing for at least three months; or
- The child is born out of wedlock.
However, the existence of any of the circumstances listed above does not mean that the court is required to grant visitation rights to a grandparent. The court reserves the discretion to deny the request for grandparent visitation.
If visitation is granted, the Arizona statute requires the court to order the visitation to occur while the child is spending time with the parent through whom the grandparent-grandchild relationship flows, whenever logistically possible. As a practical matter, this means that grandparent visitation will occur during, and not in addition to, the parenting time granted to that particular parent.
In deciding whether to order grandparent visitation and, if so, how much, the statute requires the court to consider all relevant factors, including:
- The historical relationship between the child and the grandparent
- The motivation of the grandparent in seeking visitation
- The motivation of the parent in denying visitation
- The quantity of visitation requested and the potential adverse impact that visitation will have on the child's customary activities
- If one parent is deceased, the benefit in maintaining an extended family relationship
In addition to these statutory considerations, Arizona courts have basically adopted a sixth factor to consider: that the grandparent visitation order be "as minimally intrusive as possible."
Any parent or grandparent seeking or opposing a grandparent visitation order should have a specific proposed visitation schedule outlined for the judge, even if the proposal is for no visitation at all. The party should be prepared to explain in terms of the six factors listed above why the requested visitation schedule is in the grandchild's best interest.
An interesting situation arises when a parent whose fitness for custody is not in question offers visitation to the grandparent, but the grandparent does not agree that the visitation offer is sufficient or appropriate. The parent can argue that grandparent's visitation proposal, if granted, would infringe on the fit parent's constitutional right to make decisions concerning the care, custody, and control of his or her own children.
Grandparent Visitation and the Constitutional Rights of an Objecting Parent
Because this is considered such an important constitutional right, the United States Supreme Court became involved with this issue in 2000 when it decided the case of Troxel v. Granville. While the Supreme Court refused to hold that a state cannot order grandparent visitation when a fit parent either opposes visitation entirely, or opposes the amount of visitation the grandparent is seeking, it did hold that the family court must give "special weight" to the fit parent's determination of what is an appropriate amount of grandparent visitation, including none at all.
In other words, it can be extremely difficult for a grandparent to win a visitation order over the objection of a parent. The Arizona case of McGovern v. McGovern laid out the following additional principles that a trial court must now follow in crafting a grandparent visitation order:
- The trial court should recognize and apply a presumption that a fit parent acts in his or her child's best interest in decisions concerning the child's care, custody and control, including decisions concerning grandparent visitation;
- The presumption described above can be rebutted and overcome by evidence;
- The trial court must consider and give "some special weight" to a fit parent's determination of whether visitation is in the child's best interest and give "significant weight" to a parent's voluntary agreement to some visitation but less than the grandparent seeks; and
- The trial court cannot order grandparent visitation "based solely on the judge's determination of the child's best interests" or the judge's "mere disagreement" with a fit parent's choice.
As you can see, the law is very much stacked against grandparents who are in a dispute with a "fit" parent. This makes it especially important for a grandparent to be extremely well organized with his or her case and evidence.
