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Grandparent Visitation and Custody Disputes

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Visitation and custody

We occasionally hear from grandparents who have visitation and custody disputes with their children. More commonly, they have disputes with their children’s spouses, partners or exes. The stories are often heartbreaking, and we want to help. Too often, our best advice is “you’ll have to learn to deal with it.”

Court cases outlining grandparents’ rights to visitation and custody have tapered off in recent years. That’s largely because of the U.S. Supreme Court’s decision in Troxel v. Granville back in 2000. Since then, the law has shifted to clarify that parents have an inherent right to custody and control of their own children. In other words, the courts don’t get to decide who would be the better parent, or even what might be best for the children, unless the grandparents can overcome some threshold assumptions.

Though the Arizona appellate courts have not weighed in on grandparent visitation and custody disputes very often in recent years, that changed dramatically last month. There doesn’t seem to be any particular reason for it, but the week before Christmas saw four Arizona Court of Appeals decisions addressing related questions.

After parents divorce, grandparents seek more contact

Only one of the four cases is a “reported” decision — meaning it can be cited as precedent in other cases. So we can start there.

When Amanda and Matthew Borja divorced in Prescott in 2020, Amanda was given sole legal decision-making authority over their three minor children. Matthew agreed to forego parenting time, because he was worried about COVID exposure. But his parents Nicholas and Vivian did want time with their grandchildren.

Amanda did not object to her exe’s parents visiting with the kids, but she thought she should set the schedules and circumstances. She participated in a round of mediation with her in-laws, but it was inconclusive. Then the court got involved.

The Yavapai County divorce court judge ultimately ruled that Nicholas and Vivian would have structured time with the grandkids. They would get the grandkids for a Friday-night-to-Sunday-night weekend once a month, two weeks during summer break, either Easter, Thanksgiving or Christmas each year and five hours with all the grandkids on each of their — and the grandparents’ — birthdays. Plus scheduled telephone calls and notifications of important events at school or extracurricular activities.

The Arizona Court of Appeals agreed that Nicholas and Vivian should have some visitation with their grandkids. But the trial court’s schedule — amounting to 51 days each year — was too much. The appellate court reversed and remanded for the court to prepare a new schedule, which must be “minimally invasive” on Amanda’s parental rights. Borja v. Borja, December 20, 2022.

Visitation and custody decisions for Christmas?

Two of the three “memorandum” (that is, unreported) decisions came down the same day as the Borja case. They also were decided by the same division of the Court of Appeals, though only one judge was involved in more than one of the cases.

In one, the child’s maternal grandmother sought custody over the child. Both of the child’s parents were in the military, and were posted overseas. She claimed that she had been raising the grandchild in the parents’ absence.

But the child’s father noted that he had now been returned to the US under a compassionate leave program. He was ready to take custody of his son back.

By the time of the court hearing, the child’s mother had also returned stateside. The child was already living with her, and doing well. The trial judge rejected both visitation and custody orders on behalf of the grandmother, and the Court of Appeals agreed. Alupoaiei v. Correa, December 20, 2023.

In yet another case decided on that same day, grandparents sought to take their daughter’s place in visitations after the grandchild’s father got custody. The trial judge denied court-ordered visitation. They were directed to work with the child’s father to schedule weekly phone calls and in-person visits. The Court of Appeals agreed with this outcome, as well. Hand v. Mills, December 20, 2023.

One more visitation and custody case before year-end

The last of the flurry of cases involved yet another maternal grandmother seeking what’s called in loco parentis recognition. She argued that she had effectively been parenting her grandson since his mother’s death. She also sought child support payments from her grandson’s father for the time when her grandson had been living with her.

The trial court ruled that a possible history of drug use by the child’s father did not prevent him from being a good parent now. And even though he might have abused his late wife there was no evidence he had done anything to — or in front of — his son.

The Court of Appeals agreed, and ruled that the grandmother could not have custody over the father’s objection. But it did order the trial court to figure out how much he owed her in child support for the months she cared for her grandson under temporary court orders. Atkison v. Shafer, December 29, 2023.

Can we generalize from these cases?

Yes. It’s a harsh reality, but grandparent visitation and custody disputes seldom end up favorably for the grandparents. That doesn’t mean they are never successful, but the law favors parents’ rights over those of grandparents.

More fundamentally, the legal question is seldom the one grandparents want asked. It is not “what would be best for my grandchild?” or “how good a parent is my child (or my child’s ex)?” Usually the key question is “are things so bad that the courts should intervene in parental decisions?”

We see grandparents who mean well, who love their grandchildren, and who feel like they have tried to work with the parent or parents. But our advice is usually the same. Try to work out visitation and custody disputes without going to court. You will face an uphill battle there.


One Response

  1. I handled a WI trial court to Ct of Appeals to our Supreme Court case back in the early ’90s, where I represented the mother and adoptive father a few years after her husband’s/child’s father’s death. The parents won until the Supreme Court decision, which remanded the case to grant some limited paternal grandparent visitation (far less than the GPs had insisted upon). The decision essentially required reversal of the SCt’s reasoning in a prior post-divorce case. The legislature subsequently enacted legislation creating standards to be met before a trial Ct could have jurisdiction in both post-divorce and post-death GP visitation request matters. It’s not easy to qualify. As a grandparent myself, I have always thought about these cases and understand both sides, I am so thankful that my grandchildren’s parents have a rock solid marriage and that I never had to deal with this painful issue!

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Robert B. Fleming


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.

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