Grandparent and Non-Parent Custody and Visitation under Arizona Statutes and the U.S. Supreme Court Case of Troxel v. Granville

By James L. Stroud

Every state's law allows court-ordered child visitation for grandparents, at least in some circumstances, although the standards for awarding visitation vary between the states. On June 5, 2000, the United States Supreme Court decided the case of Troxel v. Granville, which is likely to have a wide-ranging effect on grandparental visitation.

This article is based on a presentation on Troxel v. Granville that the author made to the Family Law Section at the State Bar of Arizona's annual convention on June 16, 2000. The author is only admitted to the practice of law in Arizona and the only specific grandparental statutes this article discusses in considering the possible impact of the Troxel decision are those of Arizona. Even for people in Arizona, this article is only background information and not legal advice. It cannot take the place of consulting with a lawyer.

Background of the Troxel Case.

The case came out of the state of Washington. Following is a simplified summary of the facts.

Tommie Granville is the mother of two minor daughters. She did not marry their father, although they lived together for a time after the girls' birth. When the parents separated, the father moved to the home of his parents, Jenifer and Gary Troxel. The girls regularly spent weekends with their father at their grandparents' home. Then the father passed away. At first the girls continued to spend time regularly with their grandparents, but after about six months the mother told the grandparents they would be limited to one afternoon visit per month with no overnights. So they filed a court case asking for more time. The trial judge awarded them one two-day weekend per month including an overnight, four hours on each grandparent's birthday, and one week of vacation with overnights each summer. The judge made a finding that such a schedule would be in the girls' best interest in that they were part of a loving extended family that could give them exposure to their cousins and to music. The judge commented in court that as a child, he had spent a week with his grandparents during the summers.

The Washington statute (which means a law enacted by the legislature) on which the judge's decision was based allowed any person to be awarded court-ordered visitation with any children at any time, if it was in the children's best interest. This was an especially liberal visitation statute.

The mother appealed to the higher courts in the state of Washington. On appeal, the Washington Supreme Court voided the statute on the basis that it was unconstitutional under the federal Constitution because it interfered with the mother's right to make decisions about her children and it thereby violated her right to due process of law under the Fourteenth Amendment. The case ultimately was accepted for review by the United States Supreme Court, which upheld the decision of the Washington Supreme Court.

What the U.S. Supreme Court Ruled in Troxel.

What the U.S. Supreme Court Did Not Rule In Troxel.

Significance of Troxel in Arizona


In Arizona, there are two statutes under which grandparents can seek court-ordered visitation. It is difficult to predict how broadly or narrowly the courts in Arizona will interpret the Troxel decision in applying it to cases brought under those statutes, and the following analysis is only the author's speculation. It is important, in any event, to keep in mind the U.S. Supreme Court ruled that the key consideration is the circumstances in which a court overrides a parent's right to make decisions about visitation with his or her children, rather than the wording of the particular statute.

People Other Than Grandparents

The U. S. Supreme Court's opinion in Troxel puts grandparents in the same category as anyone else who is not a parent. So the analysis in this article applies to all third parties who seek in loco parentis visitation under A.R.S. § 25-415. That includes, for example, a mother's husband or co-habitant who is not the children's biological parent but is "the only father the children have ever known."

Presently Existing Visitation Orders

Because Troxel requires looking to the circumstances of a particular case and does not invalidate a grandparental visitation statute across the board, a parent who wishes to invalidate an existing visitation order cannot simply refer to Troxel and have the order invalidated. The parent would need to return to court for a hearing, at which the parent would argue that because of Troxel the particular visitation order is invalid based on the particular facts of the case. It is not clear, however, that Troxel will be applied to existing orders. It is possible the court would rule that by not appealing within 30 days after the order, the parent waived the right to make the arguments that Tommie Granville made in her case. If the existing order was made by a stipulation (agreement), there is a greater possibility the court would rule that by stipulating, the parent waived the right to make Tommie Granville's arguments.

Arizona Law Since Troxel

In December 2000, Division One of the Arizona Court of Appeals (which handles appeals from trial courts in Maricopa County -- Phoenix -- and the northern part of the state) decided Jackson v. Tangreen. That decision upheld the constitutionalily of A.R.S. §25-409 against a challenge based on Troxel v. Granvilic. The Court of Appeals' reasoning was that unlike the Washington statute, A.R.S. §25-409 puts limits on the grounds on which the trial court can override the wishes of the parent by mandating consideration of specified factors (which are described above).

Despite seeming to support grandparents' right to court-ordered visitation, however, the Jackson decision contained a single sentence statement that visitation under A.R.S. §25-409 is available only if the parent has totally denied the grandparent any visitation at all. If this were followed as the law, few grandparents would get court-ordered visitation, because the parent could allow the grandparent to visit with the children for perhaps 5 minutes once every third year and thereby make the court unable to award more visitation time.

In October 2001, Division Two of the Arizona Court of Appeals (which handles appeals from trial courts in Pima County -- Tucson -- and the southern part of the state) decided McGovern v. McGovern, which stressed that in ruling on a request for grandparental visitation, it is not enough for the court to follow the requirements A.R.S. §25-409; the court also must recognize the parent’s constitutional rights under Troxel v. Granville. Division Two also commented that it did not agree that visitation under A.R.S. §25-409 would not be available if the parent had allowed the grandparent any visitation at all, because that statement by Division One in the Jackson v. Tangreen decision was dictum, which means it was a statement about a legal principle related to a situation that did not exist in the facts of the case that was before Division One and so the statement was not properly part of the court’s ruling.

In June 2002, Division One of the Arizona Court of Appeals decided Thomas v. Thomas, which involved A.R.S. §25-215, the in loco parentis statute. The case involved two women who had been domestic partners. One had adopted her sister’s child, and the two women had been raising the child jointly. (Arizona law does not permit what is known as “second parent adoption” whereby the two women could have adopted the child jointly.) When the women separated, they at first had joint custody. Later the adoptive mother was experiencing substance abuse problems, and custody was modified so the former partner was awarded sole custody. Subsequently, the adoptive mother had made progress in dealing her substance abuse problems, and the trial court restored joint custody, with the former partner designated to be the decision maker if they could not agree on a topic involving an issue such as the child’s health or education. The adoptive mother appealed, arguing that the trial court should have awarded her sole custody because of the presumption in A.R.S. §25-415 whereby custody must be assigned to a legal parent (which means a natural or adoptive parent) rather than to someone who is in loco parentis, unless awarding custody to the legal parent would be harmful to the child. The Court of Appeals overruled the joint custody decision and sent the case back to the trial court with the instruction that one of the women should he awarded sole custody. The reasoning of the Court of Appeals was that awarding joint custody is inconsistent with the presumption. In other words, if it would not be harmful to the child to award the legal parent joint custody, it would not be harmful to the child to award the legal parent sole custody, so joint custody is not permitted under the in loco parentis statute.

Caution: At this writing, the Thomas case is still subject to the possibility of review by the Arizona Supreme Court, and so the decision of the Arizona Court of Appeals could be reversed or modified.

For a discussion of the differences between sole and joint custody, see Child Custody Under Arizona Law by James L. Stroud, at this Web site

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