Under Arizona law, a non-parent may petition the family court to establish child custody and/or visitation rights. While the term third party rights is sometimes used to describe both legal objectives, it really should be used only to refer to cases where a non-parent seeks custodial rights — called legal decision-making, in Arizona. In these cases, the non-parent essentially wants to establish parental rights, not just visitation.
Third Party Rights
Pursuant to A.R.S. § 25-409, petitions for third party rights can only be filed by individuals who stand in loco parentis, which literally means the place of a parent. This means that a parental relationship must already exist with the child before the petition is filed. The most common example may be a step-parent with whom the child lives for a period of time.
Third Party Visitation
Though controlled by the same statute, cases where non-parents seek only visitation are treated a little bit differently. Notably, there is no in loco parentis requirement for third party visitation. Still, it is important to understand that these petitions are not unconditionally granted. In fact, recent case law instructed family courts to give significant weight to a biological parent’s decision to deny visitation. To grant visitation, the non-parent must prove that denial would substantially harm the child. This burden of proof is more imposing than what family courts use to determine ordinary child custody cases because third party rights and visitation cases invoke questions about a fit parent’s Constitutional right to make decisions for his or her children.
Our family law attorneys have successfully represented parties on both sides of these cases. Contact us for a free consultation to discuss third party rights, visitation, or any other family law issue.