In Loco Parentis (Custody by Non-Parent)
The term In Loco Parentis refers to situation where a party who is not a legal parent of a child but who has stood like a parent to a child(ren) may apply to the Court for custody or visitation rights. To determine a custody right for a non-parent the Court must find that there has been a meaningful parental relationship formed for a substantial period of time in order for this type of order to be entered. A.R.S. 25-415 sets forth the factors by which the Court can determine whether this type of order is available. Specifically in order to enter a custody or visitation order for a non-parent the Court must determine:
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 pursuant to this section, 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.
The standard of a Court in finding an order for custody under this statute is by clear and convincing evidence. As the Court takes very seriously the rights of biological parents, there must be a very serious showing that it is not in the best interest of the child(ren) to remain with the biological parent(s). Under A.R.S. 25-415 a non-parent may additionally apply for visitation rights to the child(ren) similar to that provided for in the grandparent rights statutes.
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