questions & answers

Question: I have been raising my step-son since he was three. Me and my husband broke up. My step-son is 14 now. He wants to live with the only mom hes ever known. Hes only a child. D.N.A. doesn't matter to him. Do I have any rights? Any advice would be helpful. 

Answer:

One of the key facts that a court will consider in determining whether to award legal decision-making is who are the legal parents of the child.  A "legal parent" is the biological or adoptive parent of a child whose parental rights have not been terminated.  A.R.S. 25-401.  A legal parent has rights regarding a child that other people do not have.

It is very unlikely that a court would grant custody of a child to someone who is not a legal parent, but it is still a possibility.  Before a court will even consider a petition to award custody to someone other than the legal parent, four things must be proven: (1) the person filing the petition stands in loco parentis to the child, (2) it would be "significantly detrimental" to place the child with either legal parent, (3) no court order concerning legal decision-making or parenting time has been entered within the last year, and (4) one of the legal parents is dead, the legal parents are not married to each other, or a petition for divorce or separation of the legal parents is pending.  A.R.S. 25-409(A).  The term "in loco parentis" means "a person who has been treated as a parent by a child and who has formed a meaningful parental relationship with a child for a substantial period of time." A.R.S. 25-401.  Even if these four requirements can proven, the law imposes a presumption that it is in the child's best interests to be placed with one of the legal parents.  A.R.S. 25-409(B).  This presumption can only be overcome by "clear and convincing evidence" to the contrary. A.R.S. 25-409(B). 

Even if the court does not award custody, it is still possible to gain visitation rights.  A.R.S. 25-409(C) provides that a person other than a legal parent may gain visitation rights if it is in the child's best interests and (1) one of the legal parents is deceased or missing, (2) the child was born out of wedlock and the legal parents are not married, or (3) a petition for divorce or separation of the legal parents is currently pending.  Therefore, it is still possible that someone who is not a legal parent could have visitation rights regarding the child.

Because of the complexity of child custody issues and the case by case decision making process, it is generally better to seek the advice and assistance of a licensed attorney who is familiar with such matters.