questions & answers

Question: I have raised my grandaughter since she was six months and she is now 7 yrs old. My son lives with me and has legal guardianship over her. Her mother came and got her two days ago stating she now wants to raise her. What legal grounds do I have or what can I do to obtain guardianship over her?

Answer:

There are additional facts necessary to properly address your question:

(1) You indicate that your son lives with you and has legal guardianship over your granddaughter.  Is your son your granddaughter's father? Does he have legal custody (rather than legal guardianship)?

(2) If your son is your granddaughter's natural or adoptive father....

• Has the court ever issued orders regarding the custody of your granddaughter (i.e. awarding your son custody, awarding your son and your granddaughter's mother joint custody, etc.)? 
• Why are you inquiring about guardianship as opposed to your son seeking to establish, enforce or modify custody orders for your granddaughter?

(3)  If your son is not the natural or adoptive father.....

• Has your granddaughter simply been in your son's care for the past 7 years or has the court issued an actual order for guardianship?
• If the court appointed your son as your granddaughter's legal guardian was it for a temporary or permanent guardianship?

****With the answers to these questions in mind, you should really seek the advice of an attorney regarding your situation.  The answer to your question and the proper course of action is really fact dependent. *******

The following information help serve as guidance to your question:

Arizona Revised Statutes, § 25-415 addresses custody of a child by a "non-parent."

25-415. Custody by nonparent; presumption; grounds; definitions

A. A child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found. The petition shall include detailed facts supporting the petitioner's right to file the petition. The petitioner shall provide notice as required by subsection E. Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true [emphasis added]:

1. The person filing the petition stands in loco parentis to the child.  [See, definition of "in loco parentis" under § 25-415 (F) below].

2. It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody.

3. A court of competent jurisdiction has not entered or approved an order concerning the child's custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.

4. One of the following applies [emphasis added]:

(a) One of the legal parents is deceased.

(b) The child's legal parents are not married to each other at the time the petition is filed.

(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.

B. If a person other than a child's legal parent is seeking custody there is a rebuttable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.

C. The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of section 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child's best interests and that any of the following is true:

1. One of the legal parents is deceased or has been missing at least three months.

2. The child's legal parents are not married to each other at the time the petition is filed.

3. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.

D. A grandparent, a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found.

E. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following:

1. The child's parents.

2. A person who has court ordered custody or visitation rights.

3. The child's guardian or guardian ad litem.

4. A person or agency that has physical custody of the child or that claims to have custody or visitation rights.

5. Any other person or agency that has previously appeared in the action.

F. A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child.  (Emphasis added).

G. For the purposes of this chapter:

1. "In loco parentis" means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.  (Emphasis added).

2. "Legal parent" means a biological or adoptive parent whose parental rights have not been terminated.