Stepparents “Stepping-up”-Third Party Custody Rights in Arizona
Written by: Stefano Ceroni
If you are a stepparent who is going through a divorce and you’re looking to “step-up” to stay a central part of your stepchild’s life, fear not! You might have some hidden third party custody rights most people don’t know about.
From grandparents and stepparents to domestic partners and distant cousins, the increase in non-traditional family dynamics has resulted in a paradigm shift where Courts are now focusing less on the who (meaning who are the legal/biological parents) and more on the what (as in what type of relationship does the person have with the child).
Over the past few decades, many state legislatures (including Arizona’s) have expanded the rights of non-legal parents to increase the options available to a Court when making a best interest determination regarding minor children. As a result, divorce and family law cases have seen a dramatic increase in the involvement of non-traditional players when it comes to custody (legal decision-making) and visitation cases.
The justification for this change arises from the notion that the Court’s most important role in making determinations about child custody (legal decision-making) and visitation is deciding what is in the “best interest” of the child[ren] at hand. And, it doesn’t take much creative thought to imagine a hypothetical where it would not be in the best interest of a child to be placed in the care of a legal parent (as opposed to a non-legal parent-like figure). For example, imagine a family scenario not too unlike the one portrayed in the famous TV sitcom “Full House.”
You remember–this is the show where a single dad is forced to raise three young girls alone because of the early passing of the children’s mother. Overwhelmed and ill-prepared, dad (a.k.a. Danny Tanner) survives the tribulations of fatherhood by calling on his brother-in-law (Uncle Jessie) and best friend (Joey Gladstone) to help lighten the child-rearing load. As we all know, the three men live in the same house and each takes turns caring for the three young girls.
Now, let’s twist the facts a little bit so the point I’m trying to make can be seen a little clearer. Let’s first say that the mother of the young girls did not pass away. Instead, let’s say she left dad and the girls to “find herself.” Mom would send some money every month along with an occasional birthday card, but, for the most part, she was non-existent. Now let’s say Dad, Mr. Tanner, unexpectedly passed away.
You see where I’m going, yet?
So, now they find themselves in Court: non-existent Mom, Uncle Jessie and Joey Gladstone, fighting over custody of the girls. Mom wants to take the children and move them to Florida, where she has been successfully residing in a 5 bedroom home for the past four years. Uncle Jessie and Joey want to keep the kids right where they are, in the same neighborhood, school and home in which they grew up.
You see the problem?
Although Mom may be completely “fit” to take care of the girls, an argument could be made that it would not be in the girls’ best interest to move to Florida with Mom. And, if there were no laws protecting third party rights (for people like Uncle Jessie and Joey), it would be a foregone conclusion that the girls would move to Florida with Mom.
Fortunately, in Arizona, the state legislature has addressed cases like this and has implemented a set of laws directly related to third party rights (See A.R.S § 25-409). Now, it is still worth mentioning that legal/biological parents still have the upper-hand when it comes to traditional custody and visitation disputes between non-parents. In fact, A.R.S. § 25-409 is full of “red tape” that specifically limits what people can actually seek custody (legal decision-making) and visitation rights. For example, a third party must not only stand in loco parentis (See A.R.S.§ 25-401(1)) to the minor child[ren] at issue, but the child[ren]’s legal parents must not be married at the time the petition for rights is filed.
Third party rights cases are some of the most complex and fact intensive cases that exist in the area of domestic relations and child custody (legal decision-making). However, stepparents and third parties alike should take solace in knowing that they may have some legal rights to gain not only visitation, but sole custody (legal decision-making authority) if they are willing to “step-up” for the children they love.