Grandparents Rights Child Custody Cases In Arizona

The Constitutionality of A.R.S. Section 25-409: We review the constitutionality of a statute de novo. See City of Tucson v. Woods, 191 Ariz. 523, 530, 959 P.2d 394, 401 (App. 1997). In conducting that review, we presume that the statute is constitutional and must construe it, if possible, to give it a constitutional meaning. See State Comp. Fund v. Symington, 174 Ariz. 188, 193, 848 P.2d 273, 278 (1993). the party alleging the constitutional violation bears the burden of proving it. Eastin v. Broomfield, 116 Ariz. 576, 580, 570 P.2d 744, 748 (1977). We will declare legislation unconstitutional only if we are clearly convinced that it conflicts with the Arizona or United States Constitution. See State v. Arnett, 119 Ariz. 38, 48, 579 P.2d 542, 552 (1978). In Graville v. Dodge, this court held that Arizona's grandparent visitation statute, A.R.S. 25-409, did not unconstitutionally infringe upon a parent's fundamental right to control child rearing. 195 Ariz. 119, 125, P23, 985 P.2d 604, 610 (App. 1999). We concluded that because A.R.S. section 25-409 "neither substantially interferes with nor heavily burdens parental rights," it need only be rationally related to a legitimate state purpose. 195 Ariz. 119 at P24, 985 P.2d 604. We then held that A.R.S. section 25-409 was "rationally related to furthering the state's legitimate interest in enabling children to become responsible adults by fostering relationships between grandchildren and their grandparents." 195 Ariz. at 126, P27, 985 P.2d at 611. After oral argument in this appeal, the United States Supreme Court issued its decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). In Troxel, the Supreme Court affirmed the Washington Supreme Court's ruling that Washington's nonparental visitation statute was unconstitutional. In Troxel, no majority opinion emerged. However, six of the justices agreed with the state supreme court that the Washington statute was unconstitutionally overbroad because it allowed "'any person' to petition for forced visitation of a child at 'any time' with the only requirement that the visitation serve the best interests of the child." Id. see also 120 S. Ct. at 2061, 2064 (plurality opinion), 2065 (Souter, J., concurring), 2068 (Thomas, J., concurring). Four of these six justices also found that the Washington statute was unconstitutional as applied. 120 S. Ct. at 2064. Two factors support our conclusion that the Supreme Court's holding in Troxel has no impact on A.R.S. section 25-409. First, although the Court found the Washington statute's language too broad to pass constitutional muster, it refused to find nonparental visitation statutes unconstitutional per se. Id. Second, A.R.S. section 25-409 is much more narrowly drawn than the Washington statute in Troxel. In contrast to the Washington law, Arizona's nonparental visitation statute is limited to grandparents and great-grandparents. A.R.S. 25-409(A), (B). In addition, the court may order visitation over parental objections only if the marriage of the parents has been dissolved for at least three months, one of the parents of the child is deceased or missing, or the child was born out of wedlock. Id. at (A)(1)-(3). Further, the statute requires the court to evaluate "all relevant factors" as well as five specific factors to determine if visitation serves the best interests of the child. Id. at (C)(1)-(5). Thus, A.R.S. section 25-409 stands in stark contrast to the "breathtakingly broad" Washington statute. Troxel, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 at 2061.