ARS Section 25-409 Interpretation
In McGovern v. McGovern, 201 Ariz. 172, 179, P 23, 33 P.3d 506, 513 (App. 2001), the Court found that 25-409 does not violate the Fourteenth Amendment. 201 Ariz. at 178, P 20, 33 P.3d at 512.
The court agreed with the conclusion reached in Jackson, but determined that additional guidance was necessary concerning "Troxel's impact on the interpretation and application of 25-409." Id. at 177, P 14, 33 P.3d at 511.
In contrast to the statute at issue in Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), Arizona's grandparent visitation statute has several self-limiting features: it is framed in permissive terms; the right to visitation arises only if the trial court finds it is in the best interests of the child; and, in determining best interests, the court is required to consider all relevant factors, including those set forth in subsection (C). Id. at P 15. Citing Graville v. Dodge, 195 Ariz. 119, 123, P 19, 985 P.2d 604, 608 (App. 1999), the court in McGovern also noted that the statute is structured to enable a trial court to make grandparent visitation "a minimal burden on the rights of the child's parents" and that if the court orders visitation, the order must be as "minimally intrusive as possible." Id. at P 16.
The court further recognized the legislature's awareness of "parents' superior right to the custody and care of their children." Id.
Section 25-409(C) provides that in determining the child's best interests, the court shall consider all relevant factors, including:
(1) the historical relationship, if any, between the child and person seeking visitation;
(2) the motivation of the requesting party in seeking visitation;
(3) the motivation of the person denying visitation;
(4) the quantity of visitation time requested and potential adverse impact that visitation will have on the child's customary activities; and
(5) if one or both the child's parents are dead, the benefit in maintaining an extended family relationship.