According to the A.R.S § 25-409 statute, third-party rights in Arizona allow the placement of children into the home of a third party. The statute also grants third-party visitation rights in certain circumstances. When going through a divorce or paternity case, this statute is commonly referenced when rights and requests are petitioned to the court. If you’re a third party seeking visitation rights, keep reading to learn how this statute and others can be used in your favor.
How Do Visitation Rights Play Out in Arizona?
When a third party requests visitation rights in Arizona, this is what is known as atypical family law. During most divorce or paternity cases, the child’s best interest is always evaluated with both parents starting off on equal footing. However, during a third-party case, both parents are given an advantage over the third party because a parent always has rights unless they sign them away. This is what is referred to as a “mother and father having an equal constitutional right to provide the control, custody, care, and protection over their child. There is no such right for third parties.
When a third party intends to file a petition with the court to request third-party visitation rights, it must meet all criteria outlined in § 25-402, subsection B, paragraph 2:
- Must establish that the third party is standing in loco parentis to the child
- Must establish that removing the child from the legal parents’ home(s) is significant to the well-being of the child
- Within the prior year of filing the petition, there cannot be an entered or approved order regarding the legal decision-making of the child; the same applies for an order regarding parenting time; however, these criteria do not apply when the child currently resides in an environment that could bring serious endangerment to the child’s health, including its physical, mental, or emotional health
- One of the following criteria must be met:
- A legal parent is deceased
- The child’s legal parents are not legally married to one another when the third party files the petition
- There is a proceeding for the dissolution of marriage between the legal parents when the petition is filed or the proceeding for a legal separation
When all four elements have been met in a manner in which it can be proved, then Rebuttable Presumption allows for the case to be set to trial.
If and when a trial takes place, the petitioner goes through the process of rebutting that the presumption of giving a parent the authority to be the sole legal decision-maker for the child is going to be in the best interest of the child. It is very important that clear evidence is obtained to make this claim and to file a petition. Without sufficient evidence establishing all four elements have been met, most petitions are quickly tossed from the court’s recognizance. Having a solid and experienced attorney who knows atypical family case law is essential to winning a third-party visitation case and is often the difference between an approved or denied petition.