ASK ANGIE^TM
By Angela Hallier, Esq.
Answers to your divorce and family law questions

Q I have a lovely granddaughter. Unfortunately, my daughter (who has custody of her) does not let me see her very often and never lets me take her places. Can I get my own "grandparent" visitation?

A In certain limited circumstances, Arizona courts may order grandparent visitation. A grandparent or a great-grandparent may petition the court for visitation if at least one of the following is true: 1) The child's parents have been divorced at least three months; 2) one of the child's parents has been deceased or missing for at least three months, or 3) the child was born out of wedlock. In determining whether or not a grandparent should be granted visitation, the court must give deference to the fundamental and constitutionally protected rights of parents to raise their children as they see fit. (Grandparents do not have such constitutionally protected rights.) A presumption exists that a fit parent acts in his or her child's best interests when making decisions concerning the child's care and well-being, including decisions regarding grandparent visitation. Thus, a parent's decision about the amount of time that should be spent with a grandparent is given special consideration. In order to gain visitation, a grandparent must rebut the presumption that the parent's decision is appropriate and best for the child, and prove a total or effective denial of access to the grandchild is occurring. (An effective denial occurs when visitation is so limited or unreasonable that it essentially fails to foster a relationship between a grandparent and grandchild.) Only then may the court grant you visitation, and it will do so only upon a finding that visitation will be in the best interests of the child.

In determining the child's best interests in this context, the court will consider all relevant factors, including the historical relationship between the child and the grandparent, the motivation of the grandparent in seeking visitation, the motivation of the person denying visitation, the quantity of the requested visitation, and the potential adverse impact such visitation would have on the child's customary activities. If logistically possible and appropriate, the Court will order that visitation by a grandparent occur when the grandchild is residing or spending time with the parent through whom the grandparent claims a right of access. This requirement does not apply in your situation, but if, for example, your daughter's ex-husband had custody of the child rather than she, the court would first look at granting you visitation during your daughter's parenting time before it would consider giving you your own time. Grandparent visitation situations are significantly different than situations where a grandparent is raising and has been acting as a parent to a grandchild. Next month's column will address those special circumstances.

It is always advisable to seek the counsel of a qualified attorney who can advise you specifically about your case. The information in this column is provided for general information only in the state of Arizona, is not specific to any one case and does not create an attorney-client relationship between the author and the reader. ©2003 - 2008 Hallier Law Firm PLC

ASK ANGIE^TM is published monthly in Arizona Trends Magazine.