Court can proceed with grandparent visitation case which relied on the child being born out of wedlock even when the parents marry during the proceedings.

by Annette Burns on July 18, 2006

A grandparent case which is brought pursuant to ARS 409(A)(3), on the grounds that the subject child was born out of wedlock, can proceed even when the child’s parents marry during the proceedings.   Fry v. Garcia (CA-CV 05-0663, Decided July 3, 2006).    The child’s Mother claimed that the court lost jurisdiction upon the marriage of the parents.  The Court of Appeals determined that "subject matter jursidiction is established at the time of filing and cannot be ousted by subsequent events".    As the legislature did not explicity state an intent that the statutory authority granted by statute was divested by a subsequent marriage, and intent to divest must be stated "explicitly and clearly" by the legislature.   As Arizona public policy favors retention of jurisdiction rather than divestiture, the grandparent case could proceed.

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