Custody of Grandchild Requires Court Consideration of Best Interests

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.

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One Response

  1. KJSteele

     /  August 30, 2013

    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.

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