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Custody and Visitation for Lesbian, Gay and Bisexual Parents
There are no reported or published cases dealing with lesbian, gay or bisexual parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Arizona law states: “The court shall determine custody, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including: the wishes of the child’s parent or parents as to custody; the wishes of the child as to the custodian; the interaction and interrelationship 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 interest; the child’s adjustment to home, school and community; the mental and physical health of all individuals involved; which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent; whether one parent, both parents or neither parent has provided primary care of the child; the nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody. …
“A parent who is not granted custody of the child is entitled to reasonable parenting time rights to ensure that the minor child has frequent and continuing contact with the non-custodial parent unless the court finds, after a hearing, that parenting time would endanger seriously the child’s physical, mental, moral or emotional health. The court may modify an order granting or denying parenting time rights whenever modification would serve the best interest of the child, but the court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger seriously the child’s physical, mental, moral or emotional health. … The non-custodial parent is entitled to have access to documents and other information about the child unless the court finds that access would endanger seriously the child’s or the custodial parent’s physical, mental, moral or emotional health.”
One 1986 case, In the matter of the Appeal in Pima County Juvenile Action B-10489, involved a bisexual man whose petition to adopt a child was denied because he was found “not acceptable to adopt a child at the present time.” He appealed this decision, arguing that the juvenile court based this conclusion solely on his sexual orientation. The court found that there was ample evidence, besides the father’s sexual orientation, to support the “no acceptable” finding by the trial court. However, the court went on to say: “The fact that the appellant is bisexual is not unlawful, not standing alone, does it render him unfit to be a parent. It is homosexual conduct which is proscribed. … It would be anomalous for the state on the one hand to declare homosexual conduct unlawful and on the other create apparent after that proscribed model.” The Arizona Legislature, however, repealed its law against “lewd and lascivious acts” and “crimes against nature” in 2001, and the U.S. Supreme Court declared all remaining laws against sodomy unconstitutional in 2003.
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
Although there are no published cases dealing with same-sex co-parents, state law allows for a person not legally or biologically related to petition for visitation.
Arizona law states: “A child custody proceeding may also be commenced in the Superior Court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found. The petition shall include detailed facts supporting the petitioner’s right to file the petition. The petitioner shall provide notice. … Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true: 1) The person filing the petition stands in loco parentis to the child; 2) It would be significantly detrimental to the child to remain or be placed in the custody of either of the child’s living legal parents who wish to retain or obtain custody; 3) A court of competent jurisdiction has not entered or approved an order concerning the child’s custody within one year before the person filed a petition, … unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health; 4) One of the following applies: a) One of the legal parents is deceased; b) The child’s legal parents are not married to each other at the time the petition is filed; c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
“If a person other than a child’s legal parent is seeking custody, there is a rebuttable presumption that it is in the child’s best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child’s legal parent. To rebut this presumption, that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child’s best interests.
“The Superior Court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, … reasonable visitation rights to the child on a finding that the visitation is in the child’s best interests and that any of the following is true: 1) One of the legal parents is deceased or has been missing at least three months; 2) The child’s legal parents are not married to each other at the time the petition is filed; 3) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
“A grandparent, a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found.
“Notice of a custody or visitation proceeding … shall be served … to all of the following: 1) The child’s parents; 2) A person who has court ordered custody or visitation rights; 3) The child’s guardian or guardian ad litem; 4) A person or agency that has physical custody of the child or that claims to have custody or visitation rights; 5) Any other person or agency that has previously appeared in the action.
“A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child. …
“‘In loco parentis’ means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time. … ‘Legal parent’ means a biological or adoptive parent whose parental rights have not been terminated.”
Citations: ARIZ. REV. STAT., Title 25, Ch. 4, Art. 1; ARIZ. REV. STAT. §25-403; ARIZ. REV. STAT. §25-408; In the matter of the Appeal in Pima County Juvenile Action B-10489, 727 P.2d 830 (Ariz. Ct. App. 1986); ARIZ. REV. STAT. §25-415.
Updated: Wed, October 13, 2004 - 12:00:07
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