There are many ways for an adult to establish authority and gain custody of a child who is not biologically theirs. Two primary options are Guardianship and Non-Parent Custody (in loco parentis custody). The differences between the two are significant and require a thorough analysis of each individual’s situation by an experienced Phoenix guardianship lawyer.

Establishing Legal Guardianship of a Child
In Arizona, Consent Guardianship allows parents to give legal authority over a child to a non-parent adult through written consent, granting that adult legal guardianship. This method also allows parents to immediately withdraw their consent and end the guardianship.

Because of this, a non-parent adult may not petition for guardianship if one of the parents will contest it. In that case, the non-parent adult may instead file a Non-Parent Custody Petition in family court.

Arizona recognizes guardianship as the authority to make important decisions for a child, including matters related to:

• Education
• Healthcare
• Living arrangements
• Personal welfare

Guardianship cases are handled in Arizona Juvenile Court, where a judge makes the final determination.

Phoenix Guardianship Attorney

When seeking guardianship in Phoenix, it is important to hire an attorney who understands the process and the different types of guardianships. In Arizona, there are two main types of child guardianships, which are different from adult guardianship:

Title 8 Guardianship

• Filed during a dependency action and requires court permission.
• Considered permanent, remaining in effect until the child turns 18.
• A legal parent may petition the court to revoke or terminate a Title 8 Permanent Guardianship.
• The petitioning parent must prove that significant changes have been made in their life and that the original reason for the child’s removal no longer exists (A.R.S. § 8-873).

Title 14 Guardianship

• Filed when a non-parent seeks court appointment to assume parental responsibilities.
• Requires that both living parents (whose parental rights have not been permanently severed) consent to the guardianship, or at least do not oppose it.
• Guardians take over responsibilities for housing, medical care, education, and other parental decisions for as long as the guardianship is in place.
• A legal parent ready to resume care may file a Revocation of Parental Consent to Guardianship and a Petition to Terminate the Guardianship. Once filed, a hearing is scheduled and a judge will decide whether to terminate the Title 14 Guardianship.

If you are seeking a legal guardianship in Arizona, call (602) 254-8880 or fill out our contact form [here].

What is Non-Parent Custody?

In Arizona, A.R.S. § 25-409, titled “Custody by Non-Parent” defines who may gain custody of a child that is not biologically theirs and how the process works.

A non-parent may file a petition in the County Superior Court where the child permanently resides or is currently located. The petition must include detailed facts supporting the petitioner’s right to request custody, and notice must be provided to:

• The child’s parents
• Any person with court-ordered custody or visitation rights
• 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

The court will deny the petition unless the pleadings establish that all of the following are true:

1. The petitioner stands in loco parentis (in the place of a parent) to the child.
2. It would be significantly detrimental for the child to remain with, or be placed in the custody of, either living legal parent who wishes to retain or obtain custody.
3. No court of competent jurisdiction has entered or approved a custody order concerning the child within one year before the petition was filed — unless there is reason to believe the child’s current environment may seriously endanger their physical, mental, moral, or emotional health.

Additionally, one of the following must apply:

• One legal parent is deceased.
• The legal parents are not married at the time the petition is filed.
• There is a pending divorce (dissolution of marriage) or legal separation between the legal parents at the time the petition is filed.

Rebuttable Presumption

When a non-parent seeks custody, the law presumes that awarding custody to the legal parents is in the child’s best interest, due to the child’s need to be raised by their legal parent. To overcome this presumption, the non-parent must provide evidence that custody with the legal parent is not in the child’s best interest.

Granting Guardianship to a Child’s Grandparents or Great-Grandparents

The Family Superior Court may grant a person who stands in loco parentis to a child — including grandparents and great-grandparents — reasonable visitation rights under A.R.S. § 25-409 (the Grandparent Visitation Statute), if the court finds that visitation is in the child’s best interest and any of the following are true:

• One of the legal parents is deceased or has been missing for at least three months.
• The legal parents are not married to each other at the time the petition is filed.
• There is a pending proceeding for dissolution of marriage (divorce) or legal separation between the legal parents when the petition is filed.

A grandparent, great-grandparent, or person standing in loco parentis may request visitation rights by filing a Verified Petition in the county where the child permanently resides or where the child is currently located.

For more details on grandparent visitation rights, see “Grandparent’s Rights.”

Different than Adult Guardianship

Guardianship of a child in family court is different from a guardianship or conservatorship in Phoenix probate court.

In probate court:

• A guardian is generally appointed to make medical decisions for an incapacitated adult.
• A conservator is appointed to manage the financial affairs of an incapacitated adult.
• These proceedings may involve powers of attorney, estate planning, or conservatorship arrangements.

While guardianships and conservatorships both address the needs of individuals who cannot care for themselves, they serve different purposes. Conservatorship lawyers can guide you through the legal process for either.

In family court:

• A Phoenix guardianship attorney who handles child custody will guide you through the process of becoming a child’s legal guardian.
• It is important to seek the advice of experienced Phoenix guardianship attorneys to determine the best option for your specific circumstances.

Free Consultation

For a free initial consultation, click on “Contact Our Firm” or call DM Cantor‘s Family Law Practice (currently known as Cantor Law Group) today to schedule an appointment.