In Arizona, the law provides a way for grandparents to obtain visitation rights even over a parent’s objection. To do this, the grandparent must:

1. Show why the fit parent’s best interest determination is incorrect.
2. Show that access to the grandparents is in the child’s best interest.

This burden is met by clear and convincing evidence — meaning the grandparent must prove that it is highly probable that the visitation is in the child’s best interests, when the parents disagree.

For information about grandparent custody rights (as opposed to visitation rights), see “Guardianship / Non-Parent Custody” to explore available options.

Visitation Rights of Grandparents and Great-Grandparents

Under A.R.S. § 25-409, the Superior Court may grant visitation rights to grandparents or great-grandparents if it finds that visitation is in the best interest of the child and one of the following is true:

• The parents’ marriage has been dissolved for at least three (3) months.
• A parent of the child is deceased or has been missing for at least three (3) months.
  • “Missing” means the parent’s location is unknown and they have been reported missing to law enforcement.
• The child was born out of wedlock.

Relevant Factors
When determining what is in the child’s best interest, the court must consider:

• The historical relationship between the child and the person seeking visitation.
• The motivation of the person requesting visitation.
• The motivation of the person denying visitation.
• The amount of visitation time requested and the potential impact on the child’s regular activities.
• If one or both parents are deceased, the benefit of maintaining an extended family relationship.

Grandparents Custody Rights & Right to Visitation Time

Grandparents — and other third parties — often play an important role in the lives of children in Arizona. Many develop close, loving relationships and deep emotional bonds with their grandchildren. When a parent prevents a grandparent or other third party from seeing the child, it can be harmful for both the child and the grandparent.

Historically, child custody and visitation disputes were decided only between the parents. However, in 1983, the Arizona Legislature amended family law to include A.R.S. § 25-409, which addresses third-party petitions for visitation or custody, including those by grandparents.

Under A.R.S. § 25-409(C), a grandparent may petition the court for visitation with their grandchild.

Determining What’s Best for the Child

When deciding grandparents’ rights in Arizona, the court must give weight to the opinion of the legal parents regarding what is in the child’s best interests. Under Arizona law, the judge must consider all relevant factors, including:

• The historical relationship, if any, between the child and the person seeking visitation.
• The motivation of the party requesting visitation.
• The motivation of the person objecting to visitation.
• The amount of visitation time requested and the potential impact on the child’s normal activities.
• If one or both parents are deceased, the benefit of maintaining an extended family relationship.

Visitation Rights

If the court decides to grant visitation rights to a third party, it will typically schedule the visitation during the time the child is with the parent who is related to that third party. In other words, the visitation should occur while the child is visiting the parent who has a relationship with the third party.

If this is not possible — for example, if the parent is deceased, missing, or has no visitation rights — the court may order that third-party visitation take place during the time the parent would have been entitled to visitation.

In many cases, a grandparent can easily prove that a parent has died or that a divorce has occurred before filing a petition for visitation. However, when the surviving or custodial parent objects to visitation, the process becomes more challenging.

This is why it is essential to work with an experienced grandparents’ rights and visitation law firm, such as DM Cantor‘s Family Law Practice (currently known as Cantor Law Group), to prepare and present the necessary evidence to the court showing that visitation is in the child’s best interest.

Grandparent Visitation

Under Arizona law, once grandparent visitation is granted, the court should aim to schedule the visitation during the time the child is living with or spending time with the parent through whom the grandparent claims the right of access.

For example, if the parents are divorced and share joint custody, grandparent visitation should occur when the child is with the parent who is related to the grandparents. If that arrangement is not possible, the court will order visitation to take place during the time that parent would have had visitation.

Petitioning for Arizona Grandparents’ Visitation Rights

Under Arizona law, a petition for grandparent visitation rights must be filed in:

• The same case in which the parents’ marriage was dissolved, or in which the court determined paternity or maternity, or
• A separate action in the county where the child resides if no prior case has been filed, or if the court that entered the prior decree no longer has jurisdiction.

Adoption and Termination of Rights
All visitation rights are automatically terminated if the child is placed for adoption, except when the adoption is by the new spouse of a natural parent who has remarried.

Filing Requirements
A third-party petition for visitation must be filed in the same case where custody and visitation between the parents was determined. If no such case exists, the petition must be filed in the county where the child lives.

Once the petition is filed, the petitioner must serve copies of the petition and all supporting affidavits to:

• The child’s legal parents
• Any third party with legal decision-making authority or visitation rights
• The child’s guardian or guardian ad litem
• Any person or agency with physical custody of the child or claiming custody/visitation rights
• Any other person or agency that has previously appeared in the case

Can Parents Control Grandparents’ Visitation Times?

In 2000, grandparents’ visitation rights faced a setback when the U.S. Supreme Court ruled in Troxel v. Granville that parents have the right to control how much time grandparents can spend with their grandchildren. The Court struck down Washington State’s non-parent possession statute, finding it too broad because it allowed any person to petition the court for visitation, thereby infringing on parents’ rights.

The Court noted that all 50 states have grandparents’ visitation statutes but limited its ruling specifically to Washington State’s law.

In Arizona, the grandparents’ visitation statute has been upheld. Arizona courts will continue to base decisions on the child’s best interest when determining visitation rights for grandparents. This law directly addresses and protects grandparents’ legal rights in the state.

Permanent Third-Party Child Custody

In certain situations, a child’s parent or parents may be unfit to provide proper care. In these cases, a third party — including grandparents — may petition for legal decision-making authority over the child based on grandparents’ rights. However, the court will deny such petitions unless all of the following are true:

1. The third party stands in loco parentis to the child.
2. It would be harmful to the child to remain in, or be placed in, the care of the legal parent who has or is seeking custody.
3. No court has entered or approved an order for legal decision-making authority within the past year, unless the child’s current environment poses a serious risk to their emotional, physical, moral, or mental health.
4. One of the following is also true:
   • One legal parent is deceased.
   • The child’s parents are not married.
   • A divorce petition is pending.

In Loco Parentis

In loco parentis is a Latin term meaning “to act in the place of a parent.” Under Arizona law, there is a rebuttable presumption that placing the child in the custody of their legal parent is in the child’s best interest.

To overcome this presumption, the petitioner must provide clear and convincing evidence that custody with the legal parent would not be in the child’s best interest. This often requires strong proof that the child’s emotional, mental, moral, or physical health would be at risk if they were placed with, or remained in, the legal parent’s care.

An experienced child custody attorney at DM Cantor‘s Family Law Practice (currently known as Cantor Law Group) can review your evidence and provide legal advice regarding your chances of success in a petition for custody of your grandchild.

What if the Grandchildren are Up for Adoption?

If a child is placed for adoption, all grandparent visitation rights end — unless the adoption is by a step-parent who is married to the child’s legal parent. If a child is later removed from their adoptive home, the court may reinstate the grandparent’s visitation rights. It is important to work with an attorney experienced in grandparent adoption rights.

Service of Process Requirements

Unless the legal parent, another party, or an agency signs a waiver of service, the third party must provide notice of the action by having them served according to Rule 41 Arizona Rules of Family Law Procedure. This can be done by:

• Personally delivering a copy of the petition and summons to the individual.
• Leaving a copy with another adult living in the home.
• If an agency is involved, serving the designated agent authorized to receive service of process.

Who Can Serve Process

The person serving the process must be one of the following:

• Sheriff
• Sheriff’s deputy
• Private process server registered with the court
• Any other person appointed by the court to serve process

Private process servers and specially appointed individuals must:

• Be at least 21 years old
• Not be a party to the action or the attorney representing a party

Arizona Supreme Court’s Ruling in Friedman v. Roels

In Goodman v. Forsen (Court of Appeals of Arizona, January 2016), the court emphasized that a parent’s determination regarding parenting time is controlling. The Goodman Court stated that “even if arbitrary, the parents’ determination is the primary factor in the analysis.” Under this standard, the burden was on the person seeking visitation to prove that denial of visitation would clearly and substantially impair the child’s best interests. This meant that a parent’s decision carried significant weight in determining who could be around their child.

However, in 2018, the Supreme Court of Arizona revisited the issue in Friedman v. Roels, 244 Ariz. 111 (2018). The case arose from a Superior Court ruling granting visitation rights to a child’s paternal grandparents. The child’s mother appealed, arguing that her wishes were not given “special weight” in the decision.

The Arizona Supreme Court affirmed the lower court’s ruling, finding that visitation was in the child’s best interest and that the mother’s decision to deny visitation was not. The Court clarified that:

• When two legal parents disagree on whether visitation is in their child’s best interest, both parents’ opinions are entitled to special weight under A.R.S. § 25-409(E).
• Neither parent receives a presumption in their favor; the court must instead decide the issue based on the child’s best interests.
• “Special weight” is given to any legal parent — defined as a parent whose parental rights are still intact — regardless of whether that parent has been declared “fit.”

Key Distinction Between Custody and Visitation

Arizona law requires proof of “significant detriment to the child” when a non-parent seeks legal decision-making authority or child placement (A.R.S. § 25-409(A)(2)). However, there is no such requirement in visitation cases (A.R.S. §§ 25-409(C), (E), (F)).

Impact of Friedman v. Roels

The ruling rejects Goodman’s broader interpretation of “special weight” and removes the heightened burden of proof in visitation cases. Now, if both legal parents disagree about third-party visitation, the court applies the best interest of the child standard — not the Goodman standard requiring proof that denial would clearly and substantially impair the child’s best interests.

In the Arizona Court of Appeals most recent decision in Flanigan v. Kittelson, No. 1 CA-CN 240088FC, the court defined “special weight” – “To recognize the special weight afforded a fit parent’s decision on third-party visitation, the individual requesting such visitation must show by clear and convincing evidence that the visitation is in the child’s best interests, and the court must find and explain why the fit parent’s best-interests determination is incorrect.”

Help from a Grandparent Visitation Rights Attorney at DM Cantor‘s Family Law Practice (currently known as Cantor Law Group)

As a third party, you may have developed a strong bond and close relationship with a child. Being prevented from seeing them can be emotionally devastating for both you and the child. In certain situations, you may also be able to seek legal custody or even adoption if the child’s health would be at risk by remaining with, or being placed with, their legal parent.

Proving that you should be granted visitation, custody, or other rights can be challenging, and success is not guaranteed. However, with the help of an experienced grandparents’ rights attorney at DM Cantor‘s Family Law Practice (currently known as Cantor Law Group), you can improve your chances of success. Our family law attorneys can review the facts of your case, assess its merits honestly, and guide you through the legal process.

Contact Our Grandparents’ Rights Attorneys

Schedule a consultation on grandparents’ rights in Arizona with a Phoenix family law attorney today by calling 602.254.8880 or filling out our online contact form. Our Phoenix grandparents’ rights lawyers are ready to work with you on your case.