Third Party Visitation Rights Arizona
The Court in in Troxel v. Granville focused on two principle factors in concluding that the Washington statute, as applied, violated the mother's "fundamental right to make decisions concerning the care, custody, and control of her children." 120 S. Ct. at 2063.
First, no one alleged and no court found the mother to be unfit. 120 S. Ct. at 2061. the Court explained that a fit parent is presumed to act in the child's best interests, and thus courts "must accord at least some special weight to the parent's own visitation determination." 120 S. Ct. at 2062.
In Troxel, the Washington trial court did not give any special weight to the mother's visitation decisions. 120 S. Ct. at 2061-62.
Instead, the trial court based its decision on its own presumption that third-party visitation would benefit the child, effectively forcing the mother to disprove the trial court's presumption. 120 S. Ct. at 2062.
Second, the mother had assented to some meaningful visitation even before the filing of any visitation petition or subsequent court intervention. 120 S. Ct. at 2063.
Thus, she did not seek to deny visitation altogether; she merely sought to limit it. Id.
Nevertheless, the trial court failed to accord significant weight to the mother's prior assent to visitation. Id. These factors, combined with the trial court's "slender findings" in favor of the visitation order, convinced a plurality of the Court that the Washington statute did no more than permit the trial court to substitute its own judgment for that of a fit parent. 120 S. Ct. at 2064. As a result, the Court concluded that the Washington statute, as applied, "exceeded the bounds of the Due Process Clause." Id. 120 S. Ct. at 2061, 2063-64.
We believe Arizona's statute does not exceed the "bounds of the Due Process Clause." Section 25-409 requires Arizona courts to give weight to the parent's visitation decisions.
For example, the court must assess "the motivation of the person denying visitation." A.R.S. 25-409(C)(3). It must also consider "the motivation of the requesting party" and "the historical relationship, if any, between the child and the person seeking visitation." Id. at (C)(1), (2).
Also, the court must assess the amount of visitation requested and determine the impact that the visitation will have on the child's customary activities. Id. at (C)(4).
As we concluded in Graville, these procedural safeguards "show that the legislature was conscious of parents' superior right to the custody and care of their children." 195 Ariz. at 127, 985 P.2d at 612 (quoting West v. West, 294 Ill. App. 3d 356, 689 N.E.2d 1215, 1221, 228 Ill. Dec. 794 (Ill. App. Ct. 1998)).
Moreover, as subsections (C)(1) through (C)(4) suggest, our statute applies only in cases in which a parent has denied visitation, not merely limited it. Thus, by applying the statute as written, Arizona courts do not violate the Due Process Clause.
Because Troxel does not stand for the proposition that nonparental visitation statutes are per se unconstitutional, and because A.R.S. section 25-409 satisfies the due process concerns identified in Troxel, we reaffirm our holding in Graville that A.R.S. section 25-409 is constitutional.