Search
Close this search box.

Custody of Grandchild Requires Court Consideration of Best Interests

Print Article

AUGUST 19, 2013 VOLUME 20 NUMBER 31

National Grandparents Day is September 8th this year. That should serve as a reminder for us to consider changing demographics: grandparents (and great-grandparents) are living longer, and increasingly fractured families are changing our expectations and default assumptions about caring for children.

More grandchildren are being raised by their grandparents every year. In fact, researchers (and U.S. Census Bureau statistics) indicate that about 7% of children are now living in households headed by a grandparent; that is more than double the 3% figure of 1970. That trend appears to have been accelerated by patterns of drug use by parents and by recent economic troubles.

It should be no surprise that problems and conflict between parents and grandparents should also be on the rise, and that the legal system would be involved. A recent Arizona Court of Appeals case illustrates some of the legal principles, and demonstrates how seniors can be involved in caretaking for their grandchildren.

David Brandon (not his real name) is the father of young Ricky; David’s wife (and Ricky’s mother) died shortly after Ricky was born. When Ricky was not quite two years old, his maternal grandmother and aunt (Kathy and Alicia) filed a petition with the Court seeking custody of Ricky.

Kathy and Alicia alleged that Ricky had lived with them since he was two months old, and that David had infrequent contact with him. Grandmother and aunt sought a ruling from the judge that they were “in loco parentis,” (literally “in place of a parent“) with little Ricky. The significance of such a ruling: if the court found that Kathy and Alicia were in loco parentis, under Arizona law they could be given partial or even exclusive custody of the child.

The court conducted hearings over several days. The testimony was contradictory; several witnesses testified for Kathy and Alicia that they were the primary caretakers for Ricky, and several other witnesses swore that David was raising his son without their help. The judge could not decide who was telling the truth, and decided to leave a temporary custody order in place, giving aunt Alicia primary custody for the time being.

David appealed (technically, he filed a “special action,” since there had not been a final order in the custody dispute — but we digress). The Court of Appeals looked at the record and court rulings, and found that the trial judge had failed to complete his responsibility. He had not received testimony on, nor made any findings about, what would be in Ricky’s best interest. The Court returned the matter to the trial judge with instructions to make findings about what would be best for Ricky. Barkley v. Blomo, August 6, 2013.

Strategically this outcome probably favors David, Ricky’s father. That assertion is not based on any knowledge about him or his caretaking abilities; there is a presumption in Arizona law that a child’s best interests are usually served by being raised by parents. That means that Kathy and Alicia will have the burden of proving that continued custody (or shared custody, or visitation) would be in Ricky’s best interests.

We have written from time to time about grandparent custody and visitation proceedings. The legal trend has run counter to the demographic trend: even as the frequency of grandparent custody has increased in recent years, the legal standards have tightened, making it more difficult to secure court approval for those arrangements.

One Response

  1. As a grandparent with custody of a 10 year old grandson, I watch the changes in law with respect to this issue with amazement. In my case I got my grandson upon his release from neonatal intensive care 25 days after his birth. The state child welfare agency had been called in my hospital staff who had determined my son and his girlfriend were not proper caretakers. The maternal grandmother first agreed to take him, but 24 hours before his release the child welfare investigator called me and said if I didn’t take him he would go to non-relative foster care. Of course, I agreed. Now, the mother and her husband seem to think I stole him from her. She is mentally impaired, though he is not. They are in no position to parent, but continually want to interfere.

Stay up to date

Subscribe to our Newsletter to get our takes on some of the situations families, seniors, and individuals with disabilities find themselves in. These posts help guide you in the decision making process and point out helpful tips and nuances to take advantage of. Enter your email below to have our entries sent directly to your inbox!

Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.