Podcast: Third Party Custody and Visitation Rights

by | Oct 2, 2013 | Child Custody, Legal Decision-Making, Parenting, Podcast, Wendy Hernandez Blog

Podcast: Third Party Custody and Visitation Rights

Episode 5

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Disclaimer: The materials and content within this podcast are intended as general information only and are not to be considered a substitute for professional legal advice or a consultation with a lawyer.

1. The Inside Track (1:06)

If all your kids are 18 and graduated from high school, chances are that you can stop child support. Many times people come to us for help with stopping the Income Withholding Order. This is a very simple document to complete (click here for the form) that can usually be done without the help of an attorney. Maricopa County Superior Court has a website full of self-help forms available for free.

The form to stop child support is only two pages long, and it will literally take you 10 minutes to fill out. The instructions are available on the website, but not only that, two times a month, Superior Court has a workshop (2nd and 4th Friday) in which you will learn how to fill out the form.

You can save yourself several hundred dollars by doing this yourself.

2. Third Party Custody and Visitation Rights (2:21)

Arizona’s law on third party custody and visitation rights is traditionally used most by stepparents and grandparents. In today’s world though, they are not the only players. There are some other people who can get custodial or visitation rights over children.

(2:48) When Wendy first started practicing law, she didn’t know that a person who is not a parent could actually try to get custody. However, as she has practiced, she has learned that this happens more often than a lot of people think.

(3:15) Third party custody and visitation rights laws are different by state, so check your local rules.

(3:30) Stefano experiences a mixed group of people coming to him inquiring about third party rights. Some people don’t think they have any rights, and then there are people coming to him who are completely convinced they DO have rights. Either way, it is important to get clarification on what those rights are and how far they go.

(4:07) The third party rights (in Arizona) a person might be entitled to are rights to custody (now called legal decision-making) and visitation. The major legal issues we are talking about with custody are the decisions regarding a child’s medical care, education, personal care decisions and religion. As a sub-part to that, when talking about third-party rights, we might also be talking about visitation, which is similar to parenting time (physical time spent with the kids).

(5:00) There is a history of people seeking third party rights mostly in the context of blood relatives. In Arizona, being a blood relative is not a requirement for getting third party custody and visitation rights. All you have to be able to do is say that you stand “in loco parentis” to the child.

(5:37) “In Loco Parentis” is a Latin term, and it means “in the place of a parent.”

(6:03) Every case is different, and a judge is going to look at each case differently. However, a judge will consider whether you have had some sort of parent-like relationship with the child or whether the child has looked at you like a parent. The relationship has to have lasted for a substantial period of time. If you’ve raised the children, provided for them, or they’ve lived under your roof, it might be worth petitioning for in loco parentis rights.

(6:49) One case where third party custody and visitation rights might be particularly helpful is where there is a stepfather in the picture. If the stepfather has been involved in the lives of the children, but now finds himself getting a divorce from the mother of the children, he could have rights. A stepparent situation is one of the most common cases where these rights do apply. Depending on the involvement of the “other” biological parent, a stepparent may have a good shot at visitation rights, if not custodial rights.

(8:22) The standards that the Arizona court uses in making decisions about third-party custody cases are these: (1) Does a person stand as a parent-like figure to the child? and (2) Would it be significantly detrimental for the child to be left in the care of either biological parent? So, if a legal or biological parent is unfit, that may be a way that a non-blood person could get third party custody of a child.

(9:28) The above-referenced factors are only the FIRST two things you need to be able to include in your initial motion to the court for third party rights. There are also some very important procedural things that can stand in your way, so you should consult with an attorney before doing anything.

For example, one procedural requirement is that the legal or biological parents can’t be married at the time you file for in loco parentis rights.

(10:36) In situations where the parents are married, under the Arizona Revised Statutes, you can’t ask for third party custody OR visitation rights of children. This applies whether you are a grandparent OR a non-blood third party. The reasons for this are public policy reasons: respecting parents’ rights and preserving the rights of parents in marriage. When parents are committed in a marriage, our laws see to it that those parents have the rights to make decisions about their children.

(12:44) The first piece of advice to anyone thinking about petitioning for third party rights (custody OR visitation) is to read the rule, consult a lawyer or BOTH.

(13:29) For the listeners, in Arizona, the section of the statutes addressing third party custody and visitation rights is 25-409. The law changed numbers this year (2013). Prior to that, it was 25-415. The prior law is similar, but not up to date as of the date of this podcast.

(14:21) More and more in recent years, we are seeing an influx of same sex partners come to us in a situation where there was a previously committed relationship that has fallen apart. However, in the course of the relationship, one of the partners adopted a child, although the adoption was the choice of BOTH partners, BOTH partners contributed and BOTH partners were involved in the raising of the child. Now, since the partners have split, however, the legal parent (the one who adopted the child) is not allowing the other partner to see the child.

(15:12) In Arizona, the rules regarding same-sex marriage are intertwined with the laws re: third party custody and visitation rights of children. (Check your local laws/rules if you are living in another state!) Because Arizona doesn’t recognize same-sex marriage, the child is not considered to have a legal relationship with the non-adopting/non-biological parent. Therefore, the only way for the non-legal parent to get third party rights is to use the third party rights law we have been talking about.

(16:11) We do like parents to try and work out these types of disputes between the two of them. This is definitely a situation where both parties should speak to attorneys just in case they don’t know about the rights they do have. Just because they are not the legal parent does not mean they don’t have legal rights.

(16:44) In a situation where two same-sex partners with children have separated, sometimes the non-legal parent was the primary caretaker of the child. Whether or not that non-legal parent can get equal visitation under third party rights laws is a gray area, although the person (on those facts alone) would probably get some visitation. How much visitation that a non-legal parent gets is in the discretion of the court, and probably depends on the rules/laws of the state.

(17:52) In Arizona, there is case law talking about how much visitation can be given to a non-legal parent. The courts have decided the visitation can’t be paramount to that which would be given to two legal parents. In other words, it can’t be an equal parenting time schedule.

(18:52) However, one thought on the topic of visitation for a non-legal parent is this: If the parties CAN work it out between themselves and draft up the paperwork, they can agree on any schedule they want – even equal time. This is a benefit to parties working together and co-parenting.

(19:44) The courts do use the child’s best interests as “The Golden Rule” in making decisions. However, the courts do have to deal with the competing interest of protecting the rights of parents. That is where parties sometimes run into a wall in seeking these third party custody and visitation rights.

(20:21) On the subject of grandparents’ rights cases, the outcome of each situation will depend on the judge, facts and what is in the best interest of the child. With visitation, the key is what is in the best interest of the child. The dilemma the judges face when deciding grandparents’ rights cases is the fact that they are taking time away from one of the parents already (because the parents are divorced, and they are splitting parenting time in two).

(22:30) Grandparents don’t usually get visitation rights that are similar to (in the amount of time) to a regular parenting time schedule. For a judge to get involved and to take time away from a parent, the judge is going to want to see something substantial.

(23:36) In situations where the child wants to see grandma or grandpa, the court can consider those wishes as part of a best interests determination. However, keep in mind that a child’s wishes is not the end-all, be-all. The court could order the child to go through some sort of court-ordered interview to find out what the child wants. Depending on the age of the child, the court could give his or her wishes a little weight or a lot of weight.

(24:41) To clarify, the child will not have to get on the stand and be questioned by a lawyer or by any of the parties. There are no laws on the books in Arizona saying that a child can’t be put on the stand. However, at least in Maricopa County, it is the policy of most of the judges that they won’t allow this to happen.

(25:07) Normally for a child to be interviewed, the child has to be around 9 or 10 years old. The interview will be done outside the courtroom. It will be done by a mental health professional who has training. It will be a conversational interview. From that conversation, the interviewer will try to figure out the child’s wishes. After the interview is done, a report will be prepared for the judge’s review, for both attorneys and for both parties.

(25:50) In situations where a child’s wishes (as reflected in the report) are in conflict with what a parent wants, if the parent decides to punish the child for expressing those wishes, a judge will not be happy. Judges do not want the children involved or coached. If it can be proven that a child was punished, it will work against the punishing person.

(26:44) There is a long list of factors a judge will consider in deciding whether to give someone third party custody or visitation rights. This list is set forth in A.R.S. Section 25-403. Remember, when you are dealing with third party rights, you need to look at 25-409 FIRST though, because you will have to get your foot in the door before you can get to the list set forth in A.R.S. Section 25-403.

(28:16) Keep in mind that in Arizona, a legal parent and a non-legal parent cannot share joint custody with each other. So if you are a non-legal parent (or third party), in order to get custody of a child, you will need to show that the legal parent is not fit (i.e., that it would be detrimental for the child to remain in the care and custody of that person). There are presumptions in place that give power to the legal parent. If you are a non-legal parent, you have to overcome those presumptions by clear and convincing evidence to get these third party custody rights.

(29:53) Now, with reproductive technology, sometimes there is confusion over who the legal parent is – for example when one mother is implanted with the other mother’s implanted egg. That is is a topic for another day and another show.

3. Thoughts From the Life Coach (30:38)

Today, James talks about choices and how you make them. Can you change your thinking on how you make your choices? What about making the best choice for yourself at the time?

Wendy then gives her thoughts on the topic of choices.

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