questions & answers

Question: I gave revocable guardianship to my mom when I moved out of state so the kids could finish that school year and I started my new job. Now that I have petitioned to revoke guardianship, she is suing me for custody. I am so far and not sure how to handle this.

Answer:

There are at least two Arizona statutes that will potentially affect your situation:  A.R.S. § 25-409 and A.R.S. § 25-415.  Read them carefully, as they can be somewhat lengthy and complex.

In short, your mother can win 'visitation' rights (even without demanding - or getting - complete custody) under A.R.S. § 25-409 if the court finds that it would serve the kids' best interests, and either: (1) the marriage of the biological parents has been dissolved for at least three months; (2) one of the biological parents is deceased, or has been missing for at least three months; or (3) the kids were born out of wedlock. Subsection (c) of that same statute provides a list of factors for the court to consider when determining the "best interests" of the children.

A.R.S. § 25-415, on the other hand, allows 'any' person who has stood "in loco parentis" to the children to apply for their custody. It can be grandparents, great-grandparents, or someone else. "In loco parentis" is a fancy (but obscure) Latin phrase that describes someone who has developed a relationship with the children that is comparable to one a parent would have. The precise definition can be found at A.R.S. § 25-415(G)(1). I

Any non-parent who tries to get custody of a child must jump through a number of hoops in addition to those set forth in A.R.S. § 25-409. In fact, ARS 25-415(A) requires the court to summarily deny the petition without further ado unless the petitioner can establish: (1) that she stands in loco parentis to the child; (2) it would be significantly detrimental to the children to leave them with the parent; (3) no court has issued a custody decree regarding the children in the past year; and (4) either (a) the parents are involved in formal divorce or separation proceedings at the time the custody petition is filed; (b) one of the parents is deceased, or (c) the children's parents are not married to each other when the custody petition is filed. (As an alternative to #3, the petitioner can argue that - even though it's been less than a year - the children's present environment may seriously endanger their welfare.)

You have an additional protection too. The law presumes that the children are better served in a parent's custody than with someone else. That doesn't mean that you automatically win! But it does mean that your mother will have to show clear and convincing evidence that awarding you custody will not serve the children's best interests. The burden of proof lies with her - not you. As you have already seen, these statutes are complicated, and you will need an attorney to guide you through them in court. You should consider hiring one immediately!