It is a common scenario – a man or woman with a child meets someone and decides to get married. Their new spouse is the child’s stepparent. But what happens if the marriage ends and they get divorced? Can the stepparent get custody of the child? Under Arizona law, you may be surprised to learn that, generally, a stepparent may not file custody and visitation actions.

Example of Arizona Court Analyzing this Issue

In Olvera v. Superior Court, 815 P. 2d 925 (1991), a woman married man who had a three-year-old child. They were married for nine years and the step-mother was the child’s primary caregiver during the marriage. The couple wound up divorcing and the step-mother argued that it would be in the best interest of the child if she were awarded custody.

Arizona Domestic Relations Law Not Friendly to Stepparents

Under Arizona domestic relations law, only parents (not stepparents) can file for custody of a minor child. Step-parents are considered “non-parents” and can only seek custody if the child is not in a parent’s custody (e.g., the parent passes away, suddenly departs, etc.). The Uniform Marriage and Divorce Act adopts a similar interpretation of a stepparent.

There is an Arizona case that stands for the proposition that a stepparent can pursue custody. The case, Bryan v. Bryan, 645 P.2d 1267, 1269-70 (1982), held a trial court was empowered to award custody to a stepparent in a divorce case. However, the court in Olvera did not follow the Bryan holding. Instead, the Olvera court stated that when custody is pursued in a marriage dissolution scenario, only natural or adoptive parents may seek custody.

Arizona Statute Affords an Exception

If you are a step-parent looking to obtain custody of a child, take note of Arizona Revised Statute Section 25-409. This statute established that a stepparent or other person may seek custody of a child if that stepparent has been treated by the child as a parent. This statute is applicable when, for example, the step-parent marries the mother while she is pregnant and the child is raised believing that the step-parent is the child’s real father. Or, a man has a child that is only a few months old and marries a woman who is treated as the child’s actual mother.

Contact a Tempe Custody Lawyer

If you and your spouse are unable to agree on custody (now known as decision-making authority) the Law Office of Ronald L. Kossack can help. Mr. Kossack has been handling family law cases for over twenty years. Mr. Kossack is a master litigator who has a strong presence in the courtroom. He will provide aggressive representation, when necessary while fighting to protect your rights. To speak with a Tempe child custody lawyer, contact us online or by calling 480-345-2652.