By Markus Risinger and Isabel Ranney

A person’s right to parent their children is a fundamental right under the 14th Amendment of the Constitution. The only way to completely dissolve a parent’s fundamental right to parent in Arizona is through severance. Visitation, however, permits a third party to be awarded time with the children if they meet certain criteria. In Arizona, a third party is a non-parent, such as a grandparent, non-legal parent, or great-grandparent.

Under Arizona’s third-party rights statute, A.R.S. § 25-409, a non-parent can petition for visitation if one of the parents is deceased or missing for at least three months, the child was born out of wedlock, or the parents are divorced or divorcing at the time the petition is filed. The parents must be divorced for three months before a petition for grandparents visitation can be filed. If the child’s parents are still married, a grandparent or other interested third party may not petition for third-party visitation. Moreover, under A.R.S. § 25-409(H), an adopted child cannot be subjected to a petition for visitation, unless the adoption is by the child’s stepparent [1].

In addition to filing a petition for third party visitation, the petitioner must provide a verified affidavit confirming the petition is truthful and include details supporting their claim. The petitioner must give notice to the children’s legal parents or guardian, any third party with existing legal decision-making over the child, and any person or agency with physical custody or legal authority over the child. Any additional person or agency that was previously involved in the action must also be notified. The notice requirement can be a problematic logistical hurdle to perfecting a visitation petition.

When determining whether to grant third party visitation, courts give “special weight” to the parent’s opinion about what serves their child’s best interests. A.R.S. § 25-409(E). Because fit parents have a fundamental interest in determining how their child is raised, courts are less inclined to grant third party visitation. (A parent may be deemed unfit under A.R.S. § 25-409(A) if they have a history of domestic violence, child abuse, illegal drug use, etc.).

In addition to giving special weight to the parent’s opinion, the court must also consider all relevant factors. These factors include, but are not limited to, the historical relationship between the child and third party, the motive of the third party, the motive of the person objecting to visitation, the amount of visitation time requested, and any negative impact visitation may have on the child’s routine. If one or both parents are deceased, the court will consider the benefits of maintaining an extended family relationship.

In Goodman v. Forsen, the Arizona Court of Appeals attempted to define “special weight.” The court declared that the third party seeking visitation would have to prove significant detriment to child unless third-party visitation was awarded [2]. However, the Arizona Supreme Court recently rejected the significant detriment test from Goodman [3]. In In re Marriage of Friedman, the child’s parents, who were divorced, disagreed on whether the paternal grandparents’ visitation would be in their child’s best interest. The Court held that, when two parents disagree on visitation, the special weight typically given to their opinions is offset, and the best interests test is applied. Although there is no current definition of special weight, these two cases suggest courts view the standard as falling in somewhere between the low standard of the best interests test and the high standard of significant detriment [4].

Obtaining third-party visitation is far more difficult than it may seem at first glance. It can be frustrating to go through the process, particularly when the parents object to visitation or if the child was adopted. Therefore, it is important for those seeking third-party visitation to be aware of the factors they must meet and the obstacles they may face in their pursuit.

[1] In adoption cases, the child is treated as if born in lawful wedlock to the adopting parents. However, suppose only one parent legally adopts the child. In that case, the court view the adopting parent as the legal parent-their spouse has no legal relationship to the child unless they also adopt This is true regardless of whether the parents are married. See Thomas v. Thomas, 203 Ariz. 34 (App. 2002). In terms of visitation, this means that the third party may not receive “parenting time” akin to what a parent would enjoy. Id.; see also Sheets v. Mead, 238 Ariz. 55 (App. 2015) (holding an adopted child cannot be subjected to visitation because the court views the adopting parent as married to a fictitious person; thus, they are not subject to a petition for third party visitation). An existing third-party visitation order is not terminated if the adoption is by a stepparent.

[2] Goodman v. Forsen, 239 Ariz. 110 (App. 2016)

[3] In re Marriage of Friedman, 244 Ariz. 111 (2018).

[4] See Troxel v. Granville, 530 U.S. 57 (2000) (holding that it is unconstitutional to presume that fit parents act in the best interests of their children).

Markus Risinger joined Woodnick Law as a law clerk in 2012. Markus graduated cum laude from the Sandra Day O’Connor College of Law at Arizona State University.

Isabel Ranney is currently working at Woodnick Law as a law clerk and is in her second year of law school at Sandra Day O’Connor College of Law at Arizona State University.