Grandparent Custody Rights

There are some circumstances where grandparents who are in “loco parentis” may be awarded custody of their grandchildren. “Loco parentis” is a legal term meaning the grandparent stands in the shoes of the parent and has developed a parent/child relationship with the grandchild.

In Arizona, child custody is legally known as legal decision making. A.R.S. §25-402(A) stipulates there are situations that allow a non-parental figure to apply for visitation or custody of a child, if it is in that child's best interest. In order to file a petition the parents of the child must either be unmarried or legally separated at the time of filing, divorced, or one parent is deceased. If the family does not meet one of these circumstances, the petition for non-parental rights will automatically be denied.

A.R.S. § 25-409 requires the grandparent to show all of the following factors to get custody of the child.

1. The grandparent stands in loco parentis to the child.
2. Giving custody to either of the legal parents would cause a significantly detrimental effect on the child.
3. There has been no custody order entered within one year of the grandparent filing for custody unless the child is at serious risk of physical, mental or emotional harm.
4. One of the following situations applies:
   1. One of the legal parents is deceased.
   2. The child’s legal parents are not married when the petition is filed.
   3. At the time the grandparent filed the petition for custody, there was a pending action in the court to dissolve the marriage of the parents or enter an order for legal separation.

Arizona law includes a presumption that it is always in the best interests of the child to remain with their legal parents. That presumption may be overcome by “clear and convincing” evidence. Clear and convincing is a legal standard of proof. It means the grandparent requesting custody must convince the court of more than a mere likelihood the evidence is true. Strong, unambiguous evidence is required.

Family Law cases take place in Superior Court locations in Arizona. Documents are filed with the office of the clerk. There is a fee required for filing. If the person cannot afford the filing fee they may apply for a fee waiver or deferral.