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Third Party Rights & Visitation2020-05-05T15:28:06-07:00

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Third Party Rights

Third party rights or visitation cases are far more complex than ordinary child custody cases, so it is critical to at least consult with an experienced attorney for a free case evaluation. Our family law attorneys have successfully filed and defended against petitions that involving stepparents, grandparents, and unrelated third parties.

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Every detail of each potential third party rights or visitation case is important, beginning with filing the correct petition.

Third party rights refer to a specific type of legal action where a non-parent seeks to establish legal decision-making and/or parenting time rights, collectively called legal custody in other jurisdictions, over a child.

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 parent-like 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.

A party seeking third party rights must also prove that it would be significantly detrimental to the child (or children) to remain in the care of either legal parent. This is an exceptionally difficult burden because it invokes a parent’s fundamental and constitutional rights.

Though controlled by the same statute (A.R.S. § 25-409), cases where non-parents seek only visitation are treated very differently from cases where non-parents seek parental rights. 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. Family courts are required to give special weight to the legal parents’ decision to deny visitation. One of the most common types of third party visitation cases involves grandparents seeking to establish a formal visitation schedule with their grandchildren.

The non-parent seeking to establish rights or visitation must prove all of the elements of their respective claim. The burden is more difficult than the best interests standard used in ordinary child custody cases. This is because third party cases necessarily involve parents’ constitutional right to make decisions for their children. Like all family court cases, either party can be ordered to pay the other party’s attorney’s fees, so it is especially important to consult with an experienced family law attorney who can help you evaluate the reasonableness of your positions, regardless of whether it is your petition or one you are defending against.

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Below you will find recent appellate decisions, sample legal documents, and insights related to third party rights and visitation.

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We offer free consultations if you have any questions about third party rights, visitation, or any other family law issue.

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