Recent decisions in both federal and state courts affect custody and access rights of persons who are not the biological parents of children but with whom they have developed relationships. Affected persons include grandparents, stepparents and others who may have acted in the place of parents (in loco parentis).
In Arizona, grandparents’ rights are codified in Arizona Revised Statute §25-409 while A.R.S. §25-415 covers anyone who may have acted as a parent to a child. A.R.S. §25-415 could affect those grandparents who have actually raised a child and are seeking more than the visitation the grandparent rights statute provides. While the statutes themselves provide a starting point from which to assess the custody and access rights of any given person, appellate court interpretations of the statutes provide more insight. Most often, the appellate court analyzes statutes within a constitutional framework. While there have not been a tremendous number of cases decided that analyze the Arizona grandparent and in loco parentis cases, the few decisions that have been made are very important. The U.S. Supreme Court case of Troxel v. Granville remains the key controlling case on the non-parent issue and provides the backdrop against which non-parent cases are decided.
B. Troxel v. Granville: The U.S. Supreme Court Weighs In
The single most important case in recent years on the non-parent rights issue involves Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000). The Troxel case originated in Washington state as a grandparent visitation dispute. In that case, the deceased biological father’s parents sought visitation under a Washington statute that allowed anyone to petition for visitation, whether biologically related or not. Although the biological mother agreed to visitation, she disputed the amount sought by the paternal grandparents and the dispute went before the Washington trial court. The trial court sided with the grandparents and the mother appealed through the Washington appellate system where the Washington Court of Appeals overturned the trial court’s visitation order and dismissed the grandparents’ visitation petition, a ruling affirmed by the Washington Supreme Court.
Following the Washington Supreme Court’s decision against them, the grandparents appealed to the U.S. Supreme Court where they found an unfriendly audience. The U.S. Supreme Court analyzed both the Washington statute and the particular factual circumstances surrounding Troxel, ultimately finding that the U.S. Constitution provided more protection for parental decision-making rights than the Washington statute and trial court provided. The Court upheld the dismissal of the grandparents’ visitation petition and the visitation awarded by the trial court was not allowed.
So, as one looks at the U.S. Supreme Court’s decision in Troxel, there are two key factors that the Court considered:
1. Fourteenth Amendment Due Process
The Constitutional issue was the key issue of the appeal to the U.S. Supreme Court. Ultimately, the Court concluded that the Washington visitation statute that allowed anyone to petition for visitation and for the Washington trial courts to award visitation in the best interests of children who may be subject of a petition was simply overbroad and impermissibly infringed on parents’ fundamental right to raise their children as they see fit.
2. Circumstances of the Case
The U.S. Supreme Court also reviewed the circumstances of the case; in other words the particular facts present in Troxel. For example, the mother in the case had actually offered visitation, just not to the extent sought by the grandparents. The Court concluded that the mother’s determination of what amounted to appropriate visitation was entitled to more weight than the trial court gave. In addition, there was no allegation that mother was an unfit parent, thus there was no apparent reason to second-guess the mother’s decisions.
In summary, the Troxel case at its simplest stands for the principle that courts are to provide a fit parent’s decisions special weight.
C. The Dodge Cases: Arizona’s Theory on Non-Parent Rights
Arizona’s best-known case on the rights of non-parents is Dodge v. Graville. This highly contested litigation resulted in four appellate reviews and even made its way to the U.S. Supreme Court. Importantly, the Dodge cases were occurring at or near the time Troxel v. Granville was progressing through the courts. It is important, therefore, to maintain clarity within the various cases and proceedings in Dodge and thus, they are herein referred to in the order in which they were decided at the various appellate court levels. Courts and lawyers refer to Dodge I and Dodge II to keep them straight; two official published opinions resulted from the litigation that, at the end of the day, left a number of questions regarding Arizona law unanswered.
1. Dodge I. (Kathryn Lucille Graville and Donald Graville, 195 Ariz. 119; 985 P.2d 604; 287 Ariz. Adv. Rep. 68 (Ariz. Ct. App. 1999)).
In this case, the mother of the children at issue was deceased and the maternal grandparents sought visitation. After the trial court awarded the grandparents the equivalent of nine days of annual visitation, the children’s father appealed on a number of bases.
On appeal, the father argued that the 14th Amendment to the U.S. Constitution provides parents a fundamental right to raise their children as they wish and that Arizona’s grandparent visitation statute interferes with that right. Although the Arizona Court of Appeals agreed with the father that parents do have the fundamental right to raise their children as they see fit, the court felt that the statute was written and applied in such a way that the intrusion upon parental rights was not unconstitutional.
The father also appealed the amount of time awarded to the grandparents. The court disposed of the father’s arguments by pointing out that the total amount of visitation time was relatively minor. The court did, however, agree with the father that the trial court’s orders that he encourage weekly telephone calls with the grandparents, consider using the grandparents as caregivers when possible and that he not discuss custody issues with the children went too far. Thus, those orders were stricken.
2. Dodge II. (Kathryn Lucille and Donald Graville v. Douglas Paul Dodge, 197 Ariz. 591; 5 P.3d 925; 322 Ariz. Adv. Rep. 15 (Ariz. Ct. App. 2000)).
In the continuing litigation regarding the Graville’s visitation, the grandparents sought to have the father found in contempt for not following the trial court’s original visitation orders. The Arizona Court of Appeals examined the issue of whether the trial court overstepped its authority by appointing a supervisor to monitor the visitation, determining that the addition of the supervisor was not an improper modification of the original order. However, this Court of Appeals decision occurred right before the U.S. Supreme Court decided Troxel. When the Arizona Supreme Court refused to review the case, the U.S. Supreme Court eventually vacated the Arizona Court of Appeals decision and sent the case back for review in light of the Troxel decision. See Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000).
Upon receiving the case back with instructions from the U.S. Supreme Court to apply the Troxel holding, the Arizona Court of Appeals chose to make both sides unhappy. The court did away with the grandparents’ requested contempt ruling, essentially, and the father’s constitutional issues went unresolved. Thus, important issues are left unclarified.
D. Other Arizona Cases
To make the length of this article workable, not every pertinent Arizona or national case is included or mentioned, however, the following cases are briefly addressed to provide more information on the subject of grandparent and non-parent visitation rights in Arizona.
1. Jackson v. Tangreen, 199 Ariz. 306; 18 P.3d 100 (2000).
The facts of this case were slightly different than most of the grandparent cases. Here, the biological father had voluntarily terminated his rights following his divorce from the mother so that the mother’s new husband could adopt the child. Following the adoption, the biological father’s mother petitioned to continue her visitation rights she had attained following the divorce but before the proceedings related to the adoption.
The Court of Appeals ruled as follows:
a. Upholding the grandparent visitation statute as constitutional, and
b. Finding that the grandparent visitation statute does not unconstitutionally distinguish between two-parent adoptions and stepparent adoptions by permitting grandparent visitation when a stepparent adopts a child.
Note that the U.S. Supreme Court refused to review this case. 534 U.S. 953; 122 S. Ct. 351; (2001).
2. Riepe v. Riepe, 208 Ariz. 90; 91 P.3d 312 (2004).
The Riepe case involves a sad set of facts. The biological mother and father were divorced and eventually the father met, moved in with, and married the stepmother. The stepmother appears to have been very involved all aspects of the child’s life during the time she was with the father. In 2001, the father died in a traffic accident. Biological mother then denied visitation to the stepmother who petitioned for visitation under Arizona’s in loco parentis statute, A.R.S. §25-415. The trial court denied the stepmother’s petition for visitation and an appeal followed.
The Arizona Court of Appeals overturned the trial court, finding that the trial court improperly required the stepmother to show that her relationship with the child was equal or superior to that of the natural parents. The appellate decision also contains a lengthy dissent and response to the dissent that takes up most of the decision.
3. McGovern v. McGovern, 201 Ariz. 172; 33 P.3d 506 (2001).
In this case, the child at issue was born out of wedlock and the biological father’s parental rights were terminated. The mother and child lived with the mother’s parents for approximately four and one-half years commencing soon after the child’s birth and it appeared from the evidence presented that a significant bond developed between the child and the maternal grandparents. Mother eventually moved the child and herself out of her parents’ home and, as in the Troxel case, offered visitation to the grandparents that was less than the grandparents preferred, prompting the grandparents to file a petition for visitation.
Following the grandparents’ petition, a stipulated order was reached that provided the grandparents with visitation. Nevertheless, following the U.S. Supreme Court’s Troxel decision, the mother sought reconsideration and a declaratory judgment based on the Troxel ruling. The trial court then vacated the stipulated order for visitation and ordered that the mother would have complete discretion on all visitation matters. The grandparents then applied to the Arizona Court of Appeals for relief.
On appeal, the court noted similarities between the McGovern’s case and Troxel. For example, the mother’s fitness was not challenged and she had offered some visitation. The Court of Appeals agreed in part and disagreed in part with the trial court’s rulings. Specifically, the Court of Appeals agreed that the trial court properly vacated the stipulated visitation order but disagreed that the mother should have 100% discretion on visitation, finding that the mother’s offer of limited visitation was only one factor to consider. The Court of Appeals remanded the case so that the trial court could hold additional proceedings on the visitation issue.
The Troxel case is a landmark decision that has created waves of litigation in the states, even prompting a movement to have grandparent and in loco parentis statutes declared unconstitutional in many states. While Troxel has modified the way that Arizona trial and appellate courts view non-parent rights and how A.R.S. §§25-409 and 25-415 are interpreted, both statutes have withstood Constitutional challenges thus far and it appears that barring legislative action to the contrary, they are likely to remain in effect. Therefore, non-parents still enjoy certain rights in Arizona, although seemingly not to the extent that they did before the U.S. Supreme Court decided Troxel.
Ms. Wilcox is a member of the Association of Trial Lawyers of America (ATLA),the Maricopa County Bar Associations, State Bar of Arizona, Arizona Women Lawyers and American Bar Association.
Ms. Wilcox is also a former instructor at the Arizona Paralegal Training Institute, where she lectured on various subjects including business formation and litigation, employment law and dissolution of marriage. She has also co-chaired seminars for other attorneys on divorce procedure on behalf of the Lorman Institute.
a. Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000).
b. Kathryn Lucille Graville and Donald Graville, 195 Ariz. 119; 985 P.2d 604; 287 Ariz. Adv. Rep. 68 (Ariz. Ct. App. 1999)
c. Kathryn Lucille and Donald Graville v. Douglas Paul Dodge, 197 Ariz. 591; 5 P.3d 925; 322 Ariz. Adv. Rep. 15 (Ariz. Ct. App. 2000).
d. Jackson v. Tangreen, 199 Ariz. 306; 18 P.3d 100 (2000).
e. Riepe v. Riepe, 208 Ariz. 90; 91 P.3d 312 (2004).
f. McGovern v. McGovern, 201 Ariz. 172; 33 P.3d 506 (2001).
25-409. Visitation rights of grandparents and great-grandparents
A. The superior court may grant the grandparents of the child reasonable visitation rights to the child during the child’s minority on a finding that the visitation rights would be in the best interests of the child and any of the following is true:
1. The marriage of the parents of the child has been dissolved for at least three months.
2. A parent of the child has been deceased or has been missing for at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent’s location has not been determined and the parent has been reported as missing to a law enforcement agency.
3. The child was born out of wedlock.
B. The superior court may grant the great-grandparents of the child reasonable visitation rights on a finding that the great-grandparents would be entitled to such rights under subsection A if the great-grandparents were grandparents of the child.
C. In determining the child’s best interests the court shall consider all relevant factors, including:
1. The historical relationship, if any, between the child and the person seeking visitation.
2. The motivation of the requesting party in seeking visitation.
3. The motivation of the person denying visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5. If one or both of the child’s parents are dead, the benefit in maintaining an extended family relationship.
D. If logistically possible and appropriate the court shall order visitation by a grandparent or great-grandparent to occur when the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child. If a parent is unable to have the child reside or spend time with that parent, the court shall order visitation by a grandparent or great-grandparent to occur when that parent would have had that opportunity.
E. A grandparent or great-grandparent seeking to obtain visitation rights under this section shall petition for these rights in the same action in which the parents had their marriage dissolved or in which the court determined paternity or maternity, or by a separate action in the county where the child resides if no action has been filed or the court entering the decree of dissolution or determination of paternity or maternity no longer has jurisdiction.
F. All visitation rights granted under this section automatically terminate if the child has been adopted or placed for adoption. If the child is removed from an adoptive placement, the court may reinstate the visitation rights. This subsection does not apply to the adoption of the child by the spouse of a natural parent if the natural parent remarries.
25-415. Custody by nonparent; presumption; grounds; definitions
A. 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 petition shall include detailed facts supporting the petitioner’s right to file the petition. The petitioner shall provide notice as required by subsection E. Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true:
1. The person filing the petition stands in loco parentis to the child.
2. It would be significantly detrimental to the child to remain or be placed in the custody of either of the child’s living legal parents who wish to retain or obtain custody.
3. A court of competent jurisdiction has not entered or approved an order concerning the child’s custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.
4. One of the following applies:
(a) One of the legal parents is deceased.
(b) The child’s legal parents are not married to each other at the time the petition is filed.
(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
B. If a person other than a child’s legal parent is seeking custody there is a rebuttable presumption that it is in the child’s best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child’s legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child’s best interests.
C. 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 section 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.
D. A grandparent, a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found.
E. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following:
1. The child’s parents.
2. A person who has court ordered custody or visitation rights.
3. The child’s guardian or guardian ad litem.
4. A person or agency that has physical custody of the child or that claims to have custody or visitation rights.
5. Any other person or agency that has previously appeared in the action.
F. A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child.
G. For the purposes of this chapter:
1. “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.
2. “Legal parent” means a biological or adoptive parent whose parental rights have not been terminated.