In a case which could impact thousands of Arizona parents, an appeals court ruled Tuesday that judges who grant visitation rights to a grandparent over the objection of a parent must do so with “minimal burden” on the rights of a parent.
The Arizona Court of Appeals opinion involves a Yavapai County judge who mandated that three children have visitation with their paternal grandparents one weekend per month, two summer weeks, three major holidays, and five birthdays. In additional, Judge Michael P. McGill ordered the mother to provide the grandparents with two-day notice of any school and extracurricular activities.
The mother appealed the order with the help of Prescott-based attorney Robert Fruge, who argued the expansive visitation award violated the mother’s constitutional rights. A three-judge agreed and ordered McGill to craft a less intrusive order which respects the mother’s authority to direct the care of her children.
Since 1983, Arizona law has allowed a grandparent or great grandparent to petition for court-ordered visitation. Phoenix-based Cantor Law Group explains that the grandparent must overcome the presumption that a parent’s objection to visitation is in the best interest of the child. The petitioner must also present evidence that visitation is in the child’s best interest.
“This burden must be overcome by a preponderance of the evidence, i.e. the grandparent must show by a 51 percent probability that visitation is in the child’s best interest,” according to the firm.
In the Yavapai County ruling decided Tuesday, the mother was granted sole legal decision-making authority of her children when she and the father divorced in 2020. Over the next several months, the father’s parents made numerous proposals for grandparent visitation. They then petitioned McGill for a formal court order.
Court records show the mother did not object to visitation in principle but opposed a formal schedule with the extensive level of involvement demanded by the grandparents. McGill conducted a hearing in summer 2021 during which the father generally supported his parents’ request, but did not express a preference on the extent of visitation.
The mother, however, cited her own issues with what was characterized as the grandparents’ “overbearing” behavior during her marriage. She also argued their formal visitation proposal created “unnecessary constraints” on the children’s activities.
McGill granted the grandparents their choice of one weekend each month; two weeks during summer break which the grandparents can schedule as two one-week periods or one two-week period; authority to take the children out of state; 5 hours visitation on Easter, Thanksgiving, and Christmas; 5 hours with all three children for each child’s birthday; 5 hours with the children for each grandparent’s birthday; and mandatory weekly calls with the children.
McGill also ordered the mother to inform the grandparents of the children’s yearly and seasonal schedules. And to provide the grandparents two-days of notice of school events, sports games, and any other extracurricular activities.
The mother timely appealed, citing the 14th Amendment right of parents to the “care, custody, and control of their children.” The right limits arbitrary intrusion into the decisions of fit parents regarding their children, including the decision to limit or deny third-party visitation.
The appellate panel found that the court record supported McGill’s decision to award grandparent visitation, based in part on the fact the grandparents had a “meaningful relationship” with the children and had spent significant time with them before the divorce.
But the panel took issue with the rest of McGill’s order, pointing out that state law requires such grandparent visitation orders to “be as minimally intrusive as possible” to ensure adherence with “parents’ superior right to the custody and care of their children.”
The appellate opinion also found fault with the fact McGill vested the grandparents with authority to schedule most of the visitation dates without regard to the mother’s schedule or her parenting interests. The judges also decried the mandatory visits on three holidays and the children’s birthdays.
“Mother’s compliance with this order requires her to disrupt every celebration, every year, of Easter, Thanksgiving, Christmas, and her three children’s birthdays,” the opinion noted. “Mandatory visits with Grandparents for all family
celebrations is more than a minimal burden and violates Mother’s fundamental parenting rights.”
In addition, the opinion found the requirement for weekly phone calls to be unconstitutional. The court could “encourage” weekly calls but would be hard pressed to enforce such a request, the panel noted.
McGill’s order requiring two-day notice to the grandparents of “all activities of the children” was also found to be excessive and it put the mother at risk of being jailed for contempt if she forgets to give sufficient notice of an activity.
“This order compels Mother to provide regular updates about her children’s potentially extensive activities at risk of a contempt proceeding should she fail,” the opinion states. “The superior court’s extensive notice requirements improperly infringe on Mother’s rights to direct the activities of her children.”
The court of appeals will remand the case to McGill in 30 days to develop a new order attentive to the children’s best interests and respectful of the mother’s parental rights. The grandparents can use that time to decide whether to file a petition for review to the Arizona Supreme Court.