Third Party Rights to Children

Third Party Rights

Show Topic

This show aired on June 30, 2017. It was hosted by David Enevoldsen, a partner with Family Law Guys. David discussed how a non-parent that may have a relationship with a child (such as a grandparent or step-parent or other party) can obtain legal decision-making rights or visitation with that child. He also discussed the concept of an “in loco parentis” relationship, and the fundamental constitutional right to rear children and how that can impact a third party’s efforts to procure visitation.

Headlines

Headlines on this show looked at the murder suicide of Gina Summers who hanged herself and her 5 year-old son following a custody fight with the child’s father, the development of an artificial intelligence program that can purportedly identify sexual orientation through the analysis of photographs, the increase of divorces and decrease of marriages in China and China’s reaction to it, and the attempted murder of Yvette Rodriguez and Robert Price by Juan Pablo Rodriguez-Fregoso after Yvette initiated divorce from Juan and appeared to be pursuing a romantic relationship with Robert followed by Juan’s suicide.

Did You Know

This show’s Did You Know looked at statistics regarding murder-suicides compiled by the Center for Disease Control and risk factors underscoring murder-suicides as discussed by a panel held by the National Institute of Justice.

Transcript of the Show

Speaker 6:                         The discussions and information provided in Family Law report are intended to be general in nature and are not directed for any individual circumstances. No attorney client relationship is being formed through this program. If you need legal advice, you're particular circumstances can vary from what is presented here, and you should seek the advice of an attorney licensed to practice in your state.

Speaker 7:                         Welcome to Family Law Report, the show that explores issues related to marriage, divorce, and children. Hosted by David Enevoldsen, a practicing family law attorney in Arizona. Now heres your host.

David Enevoldsen:           Hello everybody, and welcome to Family Law Report. I am your host, David Enevoldsen, her with you every Sunday at noon on Independent Talk 1100 KFNX. Here on Family Law Report we talk about all the current topics of family law, and that can range from what's happening in the political arena, to just basics like how to work through the nuts and bolts of a divorce or other family court proceeding.

                                             I am a practicing attorney, and of course I wok in the area of family law. When I say family law, I mean basically anything that is related to marriage, divorce, custody fights over children, prenuptial agreements, child support issues, grandparent rights, third party rights, that sort of thing. I am a partner at a law firm here in Arizona called Family Law Guys and we focus principally on helping divorcing parents avoiding getting screwed out of time with their children.

                                             We have offices here in the Phoenix area, and I just need to, every show I give this little admonishment. If you have a family court case going on, there are a lot of potential dangers buried into that, and a lot of those we talk about on the show, but I just want to highlight a few of those things. I have seen situations where people have completely lost their children. I have seen situations where people have had massive child support payments, that are sometimes way more than they should be paying. I have seen situations where people have massive alimony payments, sometimes where they shouldn't even be paying alimony. I've seen people walk away with tens of thousands of dollars in attorneys fees judgements. I've seen people walk away with tens of thousands of dollars in equalization payments. I've seen people get physically dragged out of court rooms in hand cuffs and thrown into jail over things like child support.

                                             So I just want to highlight that if you are facing a family court proceeding, whatever it is, even if you can't afford to fully hire an attorney, I strongly encourage you to go out and find an experienced attorney in family law and pay them for an hour of time to sit down and talk to them just so you know tactically what your basic right and obligations are and you're not going out and making some sort of critical area. And I know for a lot of people affording an attorney can be a difficult thing, but it just, if you can just talk to somebody just to get the basics down, so that you know you're a little more informed about what is going on and you're not making some critical error as you are going through one of these proceedings, I think you are going to be way better off.

                                             Now, obviously our firm can help with that. We of course have family law attorneys, so feel free to call us and if you have something going on you can connect with us through 480-565-8680. You can call us and schedule an appointment there, or you can check us out on our website at www.familylawguys.com. And whether you come to us or somebody else, again, I just encourage you to go speak to somebody.

                                             Now, on today's show we are gonna be talking about rights to children in family court cases, other than the parents. That is to say third party rights, or put another way, people like the grandparents, do they have rights over children when you are getting into family court cases? If you have a stepparent, does the stepparent have rights to children in a family court case? That's what we are going to be talking about. But, before we get there we are first gonna hit out headlines, and when we do headlines, essentially, we are looking at what's going in the news arena that's specifically related to family law.

                                             First up on our headlines. We have a story a woman named Gina Summers. On Monday of this week this Gina Summers was found dead with her five year old son in Orono, Minnesota. Gina was a 46 year old woman, and she had been before this embroiled in a custody dispute with a guy named Jeff Sandberg. This was over the five year old boy that was also found dead. Well, police stopped by after, at her house, after Jeff wasn't able to get ahold of anyone for the custody exchange, and initially they didn't get any response when they came to the house. They came back later when a relative had a key to the house and let them in, and then they discovered the bodies of both Gina and her son. And both of them had been hanged.

                                             So, when they went in they found nearby a suicide note that Summers had left. It was typed up and then she had signed it and it described basically that she'd been abused by her ex. She complained all about the problems with the family court system. How horrible it was that the family court system was allowing a child to be ripped away from his mother. At the end of the letter, it said quote, "Don't let this happen to another child and mother." So, I illustrate this. If you've heard the show before you know that I've done several bits on these where when somethings going on out there that revolves around this kind of violence, where somebody is either shooting somebody else, or shooting other people and murdering either a child or the other party in a family court case, and then killing themselves, these sort of murder suicide situations are kind of common. They're not something you see every single day. It's not something I see every single case, but as you've heard from the show if you've been listening, they happen on a regular basis across the country.

                                             N so I highlight this because I want to stress the importance of, number one, keeping yourself safe and looking at the situation and saying, "okay, is there any sort of possibility this person is going to explode and murder me or murder my child and then kill themselves or doing something." Just take some steps to be safe. And also, understand sometimes that when the court issues orders that are the safety based orders, where they are saying, "Okay, we wanna make sure every bodies okay.", this is one of the concerns they have out there that something like this sort of thing is going to happen. So just understand that.

                                             Moving on, next article. This is related to artificial intelligence and sexual orientation. Now, there's a paper that was released entitled, "Deep Neural Networks are More Accurate Than Humans at Detecting Sexual Orientation From Facial Images. "This ones really interesting. I don't even know quite what to think about this. It was written by Yilun Wang who is from Stanford University, and Michal Kosinski. And according to this article they created this program and took 35,326 images off of a dating site in an effort to analyze the faces and try to see, they were using what they call deep neural networks to pull different facial features out, and then they used what they call a logistic regression, whatever that means, to classify peoples sexual orientation. So in other words, they were pulling pictures off of a dating site, trying to correlate it with their sexual orientation, and trying to see if this computer program would correctly identify whether, just from looking at a photograph, whether or not somebody was heterosexual or homosexual.

                                             They ultimately developed the software that they are saying correctly identifies the sexual orientation of men 81 percent of the time, and in women 74 percent of the time. Now that's just looking at one single picture. This is kind of mind boggling to me. The interesting thing about this was that if you added in five pictures of any given person, the algorithm's efficiency jumped up from, so before it's 81 percent if you have one picture, it jumps up to 91 percent in men, and with women it jumped from 74 percent up to 83 percent in women. Now compare this, it's interesting because the data that they had was also comparing it with humans trying to do the same thing, where they had human beings just looking at photographs and trying to identify whether or not somebody was heterosexual or homosexual, and with the human judges they found that 61 percent of the males in the picture were being identified correctly, and 54 percent were being correctly identified with women.

                                             Now the facial features that the program was looking at, they broke it into what they call fixed features, which are things that are just kind of inherent to your face, stuff like nose shape, the positioning of your eyes, your jaw line. Then they had things called transient features, which is things MORE like how do you groom yourself, what are you doing to cut hair, that sort of thing. Are you tweezing your eyebrows, I guess, I don't know, that sort of thing. The authors wrote, quote, "We were really disturbed by these results and spent much time considering whether they should be made public at all. We did not want to enable the very risks that we were warning against." And now, some of the controversy that's come out around this, if you assume that this whole system is completely valid, and again, I'm not personally quite sure what to think about this. This seems really bizarre.

                                             I see Derrick, the board op in the back, kind of smiling. Are you thinking the same thing? ... I know, it's kind of crazy, right? So, one of the concerns, and I think that's exactly what people are articulating concerns about, if this stuff is legit, and you can correctly identify whether or not somebody is straight or homosexual just by looking at their photograph, and you can just plug their picture into a computer, what kinds of implications does that have on equal rights implications> Is somebody now going to say, "Plug your picture into a computer.", and all of the sudden you can't get a job or something because this employer doesn't like homosexuals.

                                             Or the reverse, what if they incorrectly identify you by looking at your picture, and you're actually heterosexual and they're like, "Oh, no. This computer software says you're homosexual, so you're not going to work here.", and you're like, "What the heck?" So I don't know, that's one of the concerns that have been popping up with the whole thing.

                                             I personally am not really sure what to think of this whole thing. Obviously, the homosexual issues have been popping up in the press in all sorts of things, and it's going all around the planet right now. We've had, if you've listened to past shows, lots of things about the tension globally about homosexuality. We've got some countries that are out killing people if they find out that they're homosexual. We've got debates all around the planet about the legality of same sex marriage, that sort of thing.

                                             So this is a real hot button topic and if you've got this technology out there that can pinpoint somebody as one thing or the other, it has some kind of frightening implications, which is I think what the authors were getting at here is, "Wow.", is that they're kind of disturbed about the potential for that. So I don't personally know what to think of that. I don't even know if this is accurate, or if they legit can do this. At any rate, I think I've beat that article to death.

                                             Moving on to the next one. We've got some interesting information coming out of China related to marriage and divorce rates. According to data compiled by the Chinese Ministry of Civil Affairs, in China last year, that is 2016, there were more than 4 million divorces, and that represents an increase of 8.3 percent over what they saw in 2015. So divorces are on the rise. Meanwhile, marriage rates are falling in China. In 2016, there were approximately 11.4 million marriages, and in 2015, there were 800,000 fewer than that. So the Chinese government is doing everything it can to implement a number of policies to try to chill divorces and encourage people to get married. They have started implementing cooling off periods in their divorce process, where they won't let you enter a divorce decree before so much time has passed, to ensure you aren't just doing it hastily. They've also engaged in campaigns about people being good housewives and being mothers, and they are just trying to do everything they can to encourage family.

                                             Alright, we're gonna take a quick break. I am attorney David Enevoldsen with Family Law guys. When we return we're going to be talking about rights to children by third parties, other than parents. If you want to call in and ask any questions, you can do so by calling 602-277-KFNX. You are tuned in to Family Law Report on Independent Talk the 1100 KFNX.

Speaker 7:                         Family Law Report is hosted by Family Law Guys and Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, the current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon, here in KFNX. If you want to know more, or to schedule an appointment with David or another one of The Family Law Guys attorneys, call 480-565-8680. That's 480-565-8680.

David Enevoldsen:           Welcome back to Family Law Report. I am your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. If you want to reach out and schedule an appointment with myself or another attorney at my firm, Family Law Guys, you can do so by calling 480-565-8680 or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share thoughts, you can do so by calling 602-277-kfnx.

                                             And today we are gonna be talking about, I'm gonna do our [inaudible 00:17:14] first. And actually, I want to do one more headline first. But we're gonna be talking about rights to children by third parties other than parents. People like stepparents, grandparents, that sort of thing. During the break Derrick and I were talking very briefly. Derricks my board op back there, we heard from him a second ago. And we were talking about this article with the homosexual AI, the artificial intelligence that's apparently able to recognize whether or not you are straight or homosexual and kind of the weird implications of that. And we also started talking about the potential for computers to run of, because there have been various concerns in the press about the possibility of computers just running off on their own and running the artificial intelligence is just going so crazy, they're like, "What if the computer abilities to interact with all this sort of operated independently, and then all of the sudden they were using this information to try to sort of humans in some sort of way." It sounds like we're getting into this crazy Skynet realm.

Derrick:                              Crazy. Crazy.

David Enevoldsen:           Yep, so at any rate, hopefully we're not there. I mean, I think we're a little ways from Skynet, but maybe not. If the nukes come soon, then I guess we'll find out differently. But at any rate, alright, I want to do one more headline because it's relevant to our "Didja Know?". Didja Know is the section where we do just some sort of trivia, family law trivia, some sort of facts. Sometimes it's something that's [inaudible 00:18:31] from the past, sometimes it statistics, sometimes we've done quizzes.

                                             The article I want to do is kind of close to home. I talked a little bit ago about a murder-suicide situation. And the article that we have here actually spawns out of Casa Grande, and there were apparently to Casa Grande Police Department police. There was Yvette Rodriguez and Robert Price and both of them were shot this week on Wednesday morning. Yvette Rodriguez worked as a police department records clerk. Robert Price worked as a patrol corporal for the Casa Grande police department, and they were both found shot in a vehicle in Casa Grande. Yvette had been shot in the upper back and Robert had been shot in the leg and torso. And so they were discovered. Medics came in, found them, they were flown up to hospitals in Phoenix. The shooter was later identified as Juan Pablo Rodriguez-Fregoso.

                                             Now, where this all becomes relevant to this whole thing is Juan was Yvettes husband, so Yvette and Robert were shot. Juan was identified as the shooter, and Juan was Yvettes husband. Turns out that Yvette had filed a divorce on Tuesday, so once again we're seeing all this crazy violence where it all spins out of that there's divorces or affairs or fights over children. People get so intensely emotional that they will reach out and shoot people. They will sometimes turn the guns on themselves. There was, interestingly, about this whole situation, there's been some as of yet unconfirmed, as I understand it, suspicion, that Robert and Yvette were in some sort of a romantic relationship.

                                             So all the pieces seem to be fitting here. Yvette's husband, Juan, discovered that Robert and Yvette were in some sort of romantic relationship. One of the factors that was fueling this whole suspicion is that it was uncovered that Robert had finalized his divorce from his wife last month. So after the shooting, where this all kind of comes to a head, is Juan was found in Mesa on the 202 near Dobson road. And when he was pulled over by police, he apparently shot himself and died. So, once again, we've got, we don't have a murder suicide here, because Price, Robert, had been moved out of ICU, he was in critical care, and apparently he has gone through several surgeries. Doctors are saying that it looks like both of them are going to be okay, both Yvette and Robert.

                                             So, it isn't actually a murder-suicide, but it was at least an attempted murder and then followed by a suicide, so within this past week we've had two different incidences here that we're reporting on where there was a family court proceeding going on, something was happening, a divorce, a fight over children, and people, someone attempted to kill someone else, or successfully killed someone else, and then turned the gun on themselves. Now that fuels into, and again, I'm going take the same basic admonishment, take this stuff seriously. If you have any sort of indications that any of this stuff is going on, be safe. Do whatever you can. Make sure you have escape plans. Report things to the police. That sort of thing.

                                             And that leads into our Didja Know, which I'm looking at specifically murder-suicide statistics. Now, the Center for Disease Control has a system they call the National Violent Death Reporting System. It was created back in 2002, and the basic mission of this thing was to understand facts about violent deaths so that, presumably if we know more about them, we can better understand how to stop them. And so the system has been collecting data from, I guess, 40 states and the District of Columbia and Puerto Rico specifically regarding various types of homicides. Now, obviously, we just had these two different headlines in one week dealing with murder-suicides.

                                             And this data is coming from 2015 that I'm about to cite to you, but I think it's still relevant here, and it shows information about people who engage in these murder-suicides. Interestingly, 78 percent of the people that they looked at that were involved in murder-suicides had a personal crisis of some sort within the two weeks prior to the murder-suicide. 71 percent of the people who were engaged in murder-suicides had a problem with an intimate partner. After that, the numbers drop off dramatically. So, after the 78 and 71 percent, everything you're looking at, stuff like mental health problems, financial problems, all that, we're looking in the 20 percent range. So, for example, the next highest number after the intimate partner suicides, which is at 71 percent is at 22 percent, and that is for people who had a recent criminal legal problem.

                                             Interestingly, 93 percent of the people who were engaged in murder-suicides were male. So, guys were more often, and I know we just had an article which was exactly the opposite, so I guess that falls within this seven percent, so it can happen that it's women who is engaged in the murder-suicide, but most of the time, 93 percent of the time, the people that were doing it were men. Two-thirds of the cases of those murder-suicides, so that's roughly 66 percent, were involving white men. I don't know what that means, maybe that create some sort of flurry politically, but that's what the statistics are saying.

                                             Now, there's a completely separate article, and it's entitled, "Men Who Murder Their Families: What The Research Tells Us", and the article is really interesting, because it's about a forum that was hosted by the National Institute of Justice on the topic of basically people killing their families. Engaging in these murder suicides and killing the people that they are in love with, or that they care about supposedly, and then turning a gun on themselves. And a couple people talk there. One of the panelists was Jacqueline Campbell, and she had conducted her own independent study across twelve cities involving these case that had murder-suicides, and after conducting her study, she said that, quote, "Prior domestic violence is by far the number one risk factor in these cases." So, she's looking at, and specifically, she had 70 percent of her cases, in the ones she looked at, there was domestic violence in the relationship prior to the murder-suicide.

                                             Interestingly, only 25 percent of those cases had any arrest records related to them. So, we've got 70 percent that she was looking at were preceded by domestic violence, only 25 percent of those situations were actually reported. So it becomes, to me this goes back to, be very aware, if you see all these indicators, number one start reporting it to the police, don't just be silent. Take some action to preemptively worry about these things. If you've got somebody who's beating you, make sure you've taken steps, emergency plans to get out of things. Talk to the police, whatever you need to.

                                             Other risk factors that they looked at, that they pointed to, were access to firearms and threats with a weapon. So, another one of the panelists, David Adams, had written a publication called, "Why do They Kill? Men Who Murder Their Intimate Partners", and in that particular article, his research was very focused on access to firearms, and in doing his research he approached people that had simply committed homicides of their intimate partners with a firearm, and one of the questions he asked them was, "Would they have murdered those people if they didn't have access to a gun?", and the vast majority of those people said no.

                                             So, there again, that may be a political statement in terms of access to firearms and freedom to have those, and interestingly, also, this is one of the things we look at when we have orders of protection, and we had a whole other show we did recently on orders of protections, but they're protective orders, they're safety orders that the court will issues saying so and so is and to allowed to go around this other person, and the impact of that is sometimes is that they will also have provisions in there that will prohibit the person that is the defendant on that, the person that's not allowed to go around the other person, from having a firearm in their possession at all. So as we talked about in that show, that can be a very dangerous implication if you need a gun to survive or anything, but this is why is because there's concerns about the firearms and the implications on killing someone.

                                             Alright, we're gonna take another quick break. I'm attorney David Enevoldsen with Family Law Guys. When we come back we're going to be talking about rights to children by third parties. If you want to call in and ask any questions, you can do so by calling 602-277-KFNX. You are tuned into Family Law Report on Independent Talk 1100 KFNX.

Speaker 7:                         Family Law Report is hosted by Family Law Guys and Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, the current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon, here in KFNX. If you want to know more, or to schedule an appointment with David or another one of The Family Law Guys attorneys, call 480-565-8680. That's 480-565-8680.

David Enevoldsen:           Welcome back to Family Law Report. I am your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. If you want to reach out and schedule an appointment with myself or another attorney from my firm, Family Law Guys, you can do so by calling 480-565-8680 or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share thoughts, you can do so by calling 602-277-kfnx.

                                             And today we are going to be talking about rights to children by third parties, people other than the actual parents. Now, a couple of different scenarios we could talk about here. One, imagine scenario one. You have a son or daughter, they get married, they have a kid. You spent a lot of time watching the child, so you're a grandparent. You become bonded as the grandparent. Your son or daughter then breaks up with the child's other parent. Do you have any right to see the kid, or make legal decisions related to the child, especially if your children are saying no?

                                             Scenario number two. You get married, the other person, your spouse has a kid from a previous relationship. You bond with the kid. I mean you're caring for them all the time, you're watching them. You get a divorce. Do you have any right to see that kid, or make legal decisions related to that child?

                                             Scenario number three, very similar. You get married with someone that has a child from a previous relationship. There's a normal parenting plan in place. You bond with the child, you're caring for them, watching them, and your spouse dies. The other parent doesn't want you to see the child anymore. Do you get to see the child?

                                             So this is what we're going to be talking about today. So basically, when you are not a legal parent in the mix, and there's a child, do you have any rights whatsoever in seeing a child? Now, before we get there, why don't I kind of briefly discuss, we've talked about this in past shows, but if you're talking about children in the family court system, there's essentially three major areas that we talk about. One is what's called legal decision making, one is called parenting time, and one is child support. Now of those, and this is just sort of foundational, so we need to understand this. I just want to make sure this is clear before we jump in to the actual third party component to this.

                                             With legal decision making, it is exactly what it sounds like. Some states call it legal custody, be we call it legal decision making. It is me who gets the rights to make legal decisions about the child. What school does the kid go to? What doctor does the child go to? That sort of thing. Parenting time is where is child when, and so you can have a parenting plan that revolves around you're parenting time, and that can look something like you exchange a child week on, week off, you can have every other weekend, there's a million variations of what you can do, but it's basically articulating how specifically is a child going to be passing between two parents and/or a third party. Child support, I think most people know basically what that is. It is trying to move money around so the child is receiving the most benefit of the income of the parties.

                                             Now, just as a preliminary note, I'm going to say that if you are a third party here, you are inherently facing an uphill battle to have any sort of potential time with the children. Now, that doesn't mean you don't get time ever, it's just that as a non-parent, you have far fewer rights than as a parent. First, before I get into any more of this, I need another sort of foundational concept. And I'm gonna give you your Latin word for the day. Ready for this, cause it's going to be like we're in school. Ready Derrick?

Derrick:                              I'm ready.

David Enevoldsen:           Okay. The word is in loco parentis, and this is a very relevant term for this third party stuff. The Latin translation is, "in the place of the parent." Now this means essentially a situation in which someone that is not a legal parent, for example it could be a temporary guardian, caretaker of the child, or something else, takes on some or all of the parenting responsibilities. So you can easily imagine a situation where there's a grandparent, as we walked about before, and this happens a lot in our modern society, where you've got a couple of parents involved, but maybe the grandparents are taking care of the child, or are taking care of the child a significant amount of the time.

                                             Same thing with stepparents, same thing with new love interests that come into the mix. You can develop that bond and you can have somebody step in and have this in loco parentis relationship. The concept itself legally works its way back to the 1700s, and they interestingly came out of the school system, where they would say schoolmasters tutors were sort of taking on the role of working with children. They are teaching them, they're caring for them during the day, that sort of thing. So that's where it originated in the context of what we're talking about today is dealing more specifically with the grandparents and stepparents and that sort of thing.

                                             Now, with respect to legal decision making, that's the first of these things that we had talked about, there's some very specific requirements you have to show in order to have legal decision making rights over a child that you are not the legal parent of. Bear with me, this is a little but statutory, but there are four things that you have to show, and all four of them have to be in place.

                                             Number one, we just talked about in loco parentis. You have to have an in loco parentis relationship with that child. Meaning again, in other words, you've been acting like a parent, You've been taking on some sort of parenting relationship with the child, and doing something a parent would otherwise do. Number two. It would be really bad for the kid to be put in the care of one of the legal parents, and the legal parents are simultaneously not trying to keep legal decision making if they are fit. So in other words, you have to have a parent, unless the legal parent are not fighting this, you have to have one of the legal parents that is unfit. And when I say unfit, there is a situation that is preventing them from being safe parents. And when we talk about fitness and family law, usually we talk about things like somebodies using drugs, somebodies beating the heck out of a kid, somebodies got an alcohol problem, something really extreme where there's just some very unsafe situation going on.

                                             Number three. This is the third requirement, again all of these have to be in place. There are no orders related to legal decision making that have been entered in the last year, and this is something, this is interesting, because it's akin to what we see in just a normal parenting time situation, or legal decision making situation is that you have to wait at least a year every time you want to go into a court and try to get a new order related to legal decision making, unless there is a serious safety issues. That is the one exception to number three there.

                                             And then the fourth prong of this whole task is that one of the following three things has to be in place, or a four part test with a three part test underneath that, so, this is a little confusing. But one of these things has to be in place. One of the parents is dead, the parents are not married, or there is a divorce or legal separation case that is going on between the parents. So, this to me is interesting, because we're basically saying that we don't want a situation where some third party is going to come in and try to take away time when we've got married parents, or living parents that are both in there trying to fight it. Otherwise, we don't want to take away legal decision making. Now, there's a lot there. That's a pretty hefty list in order to get to the legal decision making, and all of this comes out of the statute in Arizona ARS25409 if you care about that number.

                                             And statute also, this another thing, and this is why I said this is an uphill battle at the very beginning. The statute also says that you're going to start the case with a presumption that it is the child's best interest to hand legal decision making to the parents. So, here again, if you've got two fit parents, two parents who are capable of parenting, you don't have some crazy thing going on, we're starting statutorily with this presumption that it is better for the child to be in the hands of, legally, for purposes of making legal decision making, it is better for the children to be in the hands of the actual parents.

                                             So by default, parents have to be pretty much a wreck for you to get legal decision making. And I've seen these situations, I've seen situations where somebodies in prison, and then the other persons strung out on drugs, and the grandparent step in and they say we're gonna take care of the kids, you can easily get it there, but if you've got two fit parents and everything's fine, and you're, say you're a grandparent, you're walking in trying to get legal decision making, that can be a little bit tougher battle.

                                             Now, lets shift over to parenting time, because again, these are two distinct things. This context, if you're a third party, and not a legal parent, we call it visitation, because, of course, you're not having parenting time if you're not actually a parent, but the concept is basically the same thing. When we're talking visitation, it is when are you getting to see the kid? To get visitation we have a slightly different test, and that is, there's two things you have to show, and the second one has sub parts.

                                             The first one is, is visitation in the best interest of the child? We'll come back to that in one second. And, number two, you have to have one of the following things. A, one of the parents is dead or has been missing for three months or more. B, kid was born to unmarried parents, and the parents are not currently married. So here again we're trying to make sure we don't have third parties trying to rip away parenting time from married parents. C, I guess I'm switching between numbers and letters. If you're a grandparent, the parents have to have been divorced for at least three months, or D, if you're not a grandparent, but you still have an in loco parentis relationship, there's a pending divorce case. So here again, you've got kind of an uphill battle, but this ones a little bit easier.

                                             Now, with respect to the best interests of the child, there is a whole separate statute, and we've talked about this separately. There's a bunch of different factors that the court is gonna look at the in terms of what is in the best interest of the child. And unfortunately, there is a fair amount of subjectivity to that, but it's stuff like, and I'm just going to give you a couple of examples without running down the entire list, that has a past, present, potential relationship between parents and the children, interaction in a relationship of the child, with the child's parent or parents. The child's siblings, and any other person who may significantly affect the child's best interests. So that's a very important one in this context because you could be a third party, and there could be a significant set of interactions between the parent and the child.

                                             Another one that could potentially be interesting here is if the child is of a suitable age and maturity level, the wishes of the child as to legal decision making and parenting time. So that means that if you have a kid that is old enough, that child can come in and say, "I have a desire to see grandma and grandpa, or stepparent.", or something like that.

                                             Alright, we're gonna take another quick break. I'm attorney David Enevoldsen with Family Law Guys. When we return we're going to be talking a little more about the rights to children by third parties other than the parents. If you want to call in and ask any questions, you can do so by calling 602-277-KFNX. You are tuned in to Family Law Report on Independent Talk 1100 KFNX.

Speaker 7:                         Family Law Report is hosted by Family Law Guys and Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon, here in KFNX. If you want to know more, or to schedule an appointment with David or another one of The Family Law Guys attorneys, call 480-565-8680. That's 480-565-8680.

David Enevoldsen:           Welcome back to Family Law Report. I am your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. If you want to reach out and schedule an appointment with myself or another attorney from my firm, Family Law Guys, you can do so by calling 480-565-8680 or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share thoughts, you can do so by calling 602-277-kfnx.

                                             And today we've been talking about third party rights over children in family court cases. Now, we just talked a little about legal decision making, and to resummarize that very quickly, in essence, to get legal decision making rights if you aren't an actual legal parent, you've got to basically show that the parents are a disaster, that there's something seriously wrong with them. With respect to visitation, again this si like parenting time, but just with a different label because we're not actually talking about parents here. With respect to visitation, you can get some sort of visitation without them being completely unfit, but you're still facing a pretty uphill battle. And a couple of supplements to what we said before, the court is expressly required under the statute, again this is the ARS 25409 if you care about those numbers, I like numbers so I throw them out all the time, but the court is expressly required to look at the opinions of the legal parents in deciding whether or not to give any sort of visitation.

                                             So, here again, if you've got two completely fit parents, and both of them are saying, "I don't want grandma and grandpa to see those kids.", the courts got to strongly look at that. Also, the Arizona statute expressly says that if you've got a grandparent that's trying to seek visitation, the court should try and set up a visitation schedule in a way that's gonna sinc up with the parent that they're associated with, so, for example, their son or daughter, whichever of the two is in the parental mix there. That way you don't have a grandparent that's trying to subsume the other parents time, because lets say you had a completely equal parenting schedule, then all of the sudden grandparents jump in and say, "Well, I need more time.", now all of the sudden one of the parents is losing time, so there what the court is trying to do is just distribute it so you've got an even situation.

                                             Now, one more kind of interesting note about parenting time, if you have an adoption of the child, visitation will automatically end. So, that's just one interesting aside. Now, let me jump over to child support really quick, and then I'm going to tell you kind of an interesting story about constitutional rights related to all this. If you have child support, now if you've got a situation where grandparents are jumping in a whole lot of the time, and I've usually seen this in situations where again, the two parents are just a complete disaster.

                                             You've got somebody in prison, somebodies off on the streets shooting up somewhere, in those situations you could get a child support obligation, Typically, what'll happen is the courts will enter an order, will look at the child support calculator, they'll crunch out a number, and say, "Okay, each of the two parents is responsible for X amount of dollars coming out of the total support obligation.", and then both of them end up having an obligation to the grandparents. So, that's, I won't spend too much time on child support.

                                             So, lets talk just a little bit about constitutional rights, because I think this also has implications here, and one of the backdrops that you are dealing with, and this is why, in significant part, I think this is why it's such an uphill battle when you are a third party is that you have a fundamental constitutional right as a parent to raise your children. And so that constitutional right, because the federal constitutional rights usually trump all sorts of other stuff. So if you have that, that's gonna interfere with some other person trying to step into the mix and saying, "Well, I want to parent the child too." And so that's why it's such an uphill battle generally speaking.

                                             I'm gonna tell you a little story about a case called Troxel v. Granville. Now this is a case that came out of 2000, and it went up to the United States Supreme Court, and it was dealing with this constitutional right. It came from the state of Washington, and it dealt with Tomi and Brad, who were never married, but they had two daughters. So Tomi and Brad are the parents, they had two daughters. Jennifer and Gary were Brad's parents, so that is to say they were the paternal grandparents. An so, Tomi and Brad end up splitting up, this is the two parents. Brad moves in with his parents, Jennifer and Gary. Jennifer and Gary, as you see very often happens, start caring for the daughters, they start watching the daughters on a regular basis.

                                             Then, so Jennifer and Gary are watching the child, or children. Brad ends up committing suicide. Fortunately it wasn't a murder-suicide like we talked about before, but nonetheless, he takes his life. So now, Tomi, the mom, comes in and says she wants to limit grandparents time, Jennifer and Gary's time to just a short visit once a month. Now they wanted a lot more time than this. So Jennifer and Brad, that is the Troxel's, I'm going to refer to them that way, they end up filing suit and they say , "We want more visitation time. We want to see our grandkids more." There's statute in Washington that is relevant to this whole thing. It says, quote, "Any person may petition the court for visitation rights at any time, including, but not limited to custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child, whether or not there has been any change of circumstances."

                                             So, the Troxel's come in and they're trying to use the statute, and they say, "I need more visitation time.", or, "We need more visitation time." They come in and what they specifically want is two weekends of overnight visitation per month, and two weeks of visitation each summer. In a vacuum, that doesn't sound totally unreasonable to me if you ignore all the legal stuff here. They just want a couple weekends each month and time over summer.

                                             Now, Tomi, the mom, in contrast, she's saying, "Well, no. They should just have a visit once a month with no overnight time." She's not saying no time, but she's saying just a visit a month. So there's quite a disparity between the two requests here. So this ends up going to court. The trial court there ends up saying that the Troxel's could have one weekend a month and one week during the summer. So this considerable less than what the Troxel's were asking for, but way more than what Tomi, the mom, was saying they should have. Sp Tomi ends up appealing it. It goes through the Washington court system, and the Troxel's, the grandparents, end up getting shot down. The court there basically finds that the statute is unconstitutional under the U.S. Constitution, because it's interfering with Mom, Tomi's, ability to effectively parent.

                                             So, this ends up working it's way all the way up to the US Supreme Court because now we're dealing with this fundamental constitutional right to parent your child. Supreme court ends up agreeing with the Washington courts decision, and said there was a fundamental constitutional right that Tomi, the mom, had to raise her children as she saw fit, and the child court had basically not even considered that. They just started with this default assumption that the grandparents should have some visitation time, and Tomi was sitting there saying, "No, I want to limit the grandparents time." They also made a significant point of the fact that there was no showing of unfitness by the court of Tomi. That is to say, there was no reason to be concerned about the kids being in Tomi's care. So they're coming in saying, "Look, there is nothing going on that shows any sort of danger here. Tomi is the actual legal mom, She has this constitutional right to rear her kids the way she wants to, and the court just completely ignored that."

                                             Now, let's talk about lessons from this story. It's probably at this point, if you are in this third party situation, you could completely lose hope and say, "Well, if I'm not the legal parent I'm basically just screwed out of having any sort of time with this child.", and I don't know that that's exactly true. Again, you've got an uphill battle here, but there is still a possibility of time. Now one interesting quote that I would highlight from this Troxel v. Granville case says, quote, "Because we rest our decision on the sweeping breadth of" and they cite the Washington statute, "and the application of the broad unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court, whether the due process clause requires all non-parental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not define today the precise scope of the parental due process right in the visitation context."

                                             So, what that may have sounded like a bunch of legalese. What I interpreted that to mean is the supreme court was expressly not saying, "The only situation you can have any sort of visitation as a grandparent is where the parents are a total wreck." They are saying they didn't even rule on that particular issue, they just kind of left it opened. So, from my perspective, if you conjoin that with the statute in Arizona, which doesn't say that the only situation that you can have visitation is if the parents are a complete disaster, there is still some hope that you can get some visitation time as a grandparent or as a some other person that has this in loco parentis relationship with the child. So because of that, you shouldn't just completely lose hope, but understand that you do have a very uphill battle going on with this whole situation, so if you are not a legal parent, you are not nearly in the same footing as a legal parent is going to be.

                                             One other, and I want to hit this. So, that's kind of the constitutional implications. One other interesting scenario that this in loco parentis relationship that we haven't really hit on could be relevant is with same sex couples, and this is a lot less relevant now because of the 2015 Obergefell decision that legalizing marriages in the US, and made that a constitutional right federally. But, we were seeing a lot of situations previously where you would have same sex partners, say in Arizona, where they weren't able to get married but they still had kids together, so there's still some kind of fall out from that where people weren't getting married, but I think that's disappearing now because you can actually get married. So it's still probably going to be kind of an issue for a little bit, but that's gonna evaporate very quickly, so you need to establish some legal relationships there.

                                             Alright, that is about all the time we have for today's show. You have been listening to Family Law Report. I am your host, I am your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm. We've been talking today about rights to children by third parties, other than the parents. Hope you join us again next week on Sunday at noon for more of the latest on family law here on Independent Talk 1100 KFNX, and just remember if you have a family court case going on, it is very critical that you go talk to an attorney. Somebody experienced in family low. And check us out on our website at www.familylawguys.com. Thank you all for listening and have a great week. ...

Speaker 7:                         Family Law Report is hosted by Family Law Guys an Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon, here on KFNX. If you want to know more, or to schedule an appointment with David or another one of The Family Law Guys attorneys, call 480-565-8680. That's 480-565-8680.

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