What Are Grandparents Rights?

It's not uncommon for grandparents to stand in as parents ("in loco parentis") when mom or dad are away, at work, deployed, or even in jail. But when the parents divorce and parenting time is split up, what rights do grandparents have to see their grandkids and continue their relationship?

It's a heartbreaking situation for grandparents with close and ongoing relationships with the kids. In this episode of the Modern Divorce Podcast, host Billie Tarascio talks with divorce attorney Heather Pelaez about her work to establish grandparents rights in court, influenced largely by her background and family experience. It's not an easy process,  but it's possible with the right steps, which she explains.

Jump to [00:13:47] for the beginning of the discussion about grandparents, but listen to the whole thing to hear what drives Heather and why she loves to argue on behalf of people who need an advocate.

Transcript

[00:00:00] Announcer: We hope you enjoy this episode of the Modern Divorce Podcast. But first, a message from our sponsor. 

[00:00:06] Billie Tarascio: One consistent theme you'll hear from me, Billie Tarascio, is that we do not believe in a one size fits all solution. That's why at Modern Law you can find anything you need for your family law case. For the highest stakes litigation cases, we've got experienced family law attorneys who can offer you representation.

We also have embraced. Newly licensed legal paraprofessionals who can offer you legal representation for less. And if you just need your documents prepared, we can offer certified legal document preparers as well if that's not for you, and instead you are representing yourself. Congratulations. You are like one of the 70% of people out there doing it on your own.

And our newest offering, win without law school can help. For more information about Win without Law School, go to win without law school.com. To get representation options, go to my Modern Law dot com. Hi, this is [00:01:00] Billie Tarascio with the Modern Divorce Podcast. Welcome back to the show. Today I am joined by a very special guest, Heather PIAs, one of our attorneys at Modern Law.

She is exceptional. She is fierce. She has been an advocate for clients for quite a few years now. Heather, thank you for being on the show. 

[00:01:16] Heather Pelaez: Thank you, Billie, for having me. I'm so excited. It's my first time doing anything like this. I'm a bit nervous, but also excited, so,

[00:01:23] Billie Tarascio: well, you know what? It's a lot like court.

[00:01:27] Heather Pelaez: Not really, but that to me so much easier because I'm advocating for someone else when the focus is on me. I get terrified. So, Hopefully I'll survive. 

[00:01:35] Billie Tarascio: You're gonna be, you're gonna be so fabulous. So let's talk a little bit, tell me a little bit about your background, your childhood, what brought you to law?

[00:01:43] Heather Pelaez: Okay, so I, I had this question posed not too long ago, and it was interesting because I was looking through some of my old yearbooks. And the first time I ever mentioned wanting to become a lawyer was when I was in fifth grade. They asked where we do you see yourself in 20 years? And I'm like, I'm gonna be a lawyer.

But I actually didn't, um, [00:02:00] go into law until later in life. It's really my second career. I finished law school when I was almost 30, and before that I was in banking and. I've been a lawyer now for over nine years. Nine. Nine years and a month 

[00:02:15] Billie Tarascio: Wow.. Cool. 

[00:02:16] Heather Pelaez: Yeah. I fell into family law in my first law firm. I was in a teaching firm that was started by ASU Law School.

That's where I graduated. Mm-hmm. And we got to try all different areas of law. Mm-hmm. I ended up in family law, I think in my third rotation. I did civil then criminal defense, and then fell into family law under um, Stasy Click Judge Avilar now. Um, she was my mentor for a little over a year, and I loved her.

I loved the, like, I loved that area of law and I decided that's what I wanted to continue doing after I left that firm. So, 

[00:02:50] Billie Tarascio: Wow. 

Okay. So I didn't know that you were in banking before law. Hmm. I love that you were sort of drawn to it as a child because I think like [00:03:00] so many of us who are in family law are wired in a very specific way where you're just kind of born an advocate and I think family law attorneys have like a higher.

I don't know, calling or tolerance to really speak on somebody else's behalf. So how did you end up in banking? 

[00:03:20] Heather Pelaez: So that was my very first adult job. I used to work at the mall. I worked at the limited two, the children's clothing store. So before that, and then I was like, well, I'm like 18 now. I, I, I started, I went, so I need to back up.

I did my first year of college early. I graduated high high school at 15, went to school and did my freshman year, finished at 16 and. I needed to do something else. I had a really hard time after that first year, and so I decided to enter the workforce. My first job was at Blockbuster, then limited to, and then I wanted a grownup job, and I applied at the local credit union where I had a bank account.

And from there I just, I ended up in corporate and became a trainer [00:04:00] and yeah, to go from that to law During I worked there and went to, I finished college during my time there, so. And I just decided, you know, this is something I, I really like doing. Maybe this is like an older sister syndrome. I'm the older one and was always really bossy and so maybe that I, I like the being able to tell people what to do, but also help them at the same time.

 I never really did a deep analysis other than that, so. Mm-hmm. 

[00:04:28] Billie Tarascio: I think it was something that you were always drawn to, right? You were always drawn to, first of all, you're a high achiever and you push yourself, and you true want to be the very best version of yourself, and I see this with you and your clients.

I see you show up a hundred percent of the time. Fully focused on representing them and their interests. And I think that that's one of the things they love so 

much about you. 

[00:04:50] Heather Pelaez: Yeah. And I, I, I really feel that when I am with a client, I am focused on them and their world becomes my world. And I take on, and I know this is not very health healthy, but [00:05:00] I think it does help.

I, IM learning boundaries, but I do take on a lot of that stress and I, I feel what they feel, but I also have the knowledge on how to get them through that. And so if they, when they can. Let their guard down and trust me, we always have a, a good outcome. And I, I, obviously, I can't guarantee a good outcome, but I noticed that when, when we're working together as a team, that's, that's when we get, you know, the results we want.

But I, I think we can do that when they trust me and I trust them and I understand what they're going through. And so, and so I approach every client. To the best of my ability. 

[00:05:32] Billie Tarascio: So, well, what you're highlighting I think is also like the lawyer, the client lawyer relationship in family law is so intimate, right?

[00:05:42] Heather Pelaez: It really is. I know everything about my clients and it, it's not really a two-way street. They give so much of themselves to me and trust me implicitly, when we have that relationship. Um, and I never take that for granted. I understand every decision, and I tell them all the time, like, I don't mean to increase your [00:06:00] stress level at any point, but this is your life.

We need to make good decisions. We need to think 10 years from now, not tomorrow. So 

[00:06:06] Billie Tarascio: great. And that's your job, right? 

And thankfully, 

after having so many years in, you have the ability to look back and see if I make X decision, it might turn out in this way for a particular client, right? So how do you build that relationship and 

get that trust?

[00:06:27] Heather Pelaez: Um, it starts at the very beginning. I. Like to talk a lot, as you can tell, and I talk very quickly, but I have to learn to pull back and listen. And so I start out every meeting with a, a potential new client talking about just my communication style, what I have, you know, my agenda, my, my view of the practice of law.

But then I stop and I, I'm like, and I always let them know that you've heard that. Tell me why you're here. How can I help you? And. From there, just feed off their energy. I really, I mean, that's a [00:07:00] really big part of my practice is communicating in a way they, they communicate. I try to be a chameleon in that sense and that I try to reach them on their level.

Um, I have a lot of clients who sometimes will feel intimidated with the Divorce process because they don't know what's going on, or they feel in some way inadequate because. Either they don't have as much education as a lawyer does, so they are are nervous and I try to make sure that they understand that they can be completely comfortable with me.

I'm the one that has their back. I'm not judging them. I really don't. I've heard, I've seen a lot of things. I'm not judging that, that client. Um, and then just like I said, meet on, meet them on their level. 

[00:07:38] Billie Tarascio: Can you explain those philosophies, like what is your, what is your communication style? What is the very best way that you like to work with clients? 

[00:07:50] Heather Pelaez: I like to be task oriented, so that's difficult, especially with divorces and any fa, any family law. I mean, there's a lot of emotion involved, [00:08:00] so I, I have to check that a little bit. But then I think that bringing it back to the test does help everybody, I think.

Manage their stress, control, the worry, that kind of thing. So that's my job is to teach them how to focus on the case. I guess that's one of the philosophies I have. Um, having said that though, I, I really try to work on that bedside manner again and just making sure again, but everybody feels comfortable and even

there are times, especially throughout the Divorce process, where the lawyer and the client seem to be, you know, butt heads and have disagreements and I never try to belittle or make them feel any worse than they're already feeling. Cuz I often, I understand that when clients react that way or maybe treat.

Say things that they wouldn't otherwise say because of the stress they're under. It's just caused by that stress. And so I try to be understanding throughout every interaction. 

[00:08:49] Billie Tarascio: So I'm glad 

that you mentioned that, and I wanna take a little bit of time to talk about that because, um,

[00:09:00] as a client, so I've been a client of a Divorce, and it was, it was so bizarre. It was so bizarre to 

hand over, like, My credit card statements, like being in the shoes of a client was such a good experience for me, but I also came upon a time where I felt like my lawyer wasn't listening and it was, I had I heartbreak, like it broke my heart because I, I, it's like you're relying as a client, so desperately, like your lawyer has to believe in you. Right. And so, but there's also a healthy amount of conflict. Mm-hmm. Sort of needs to happen because you want your attorney to take a different approach, to check your assumptions, to challenge your mentality. So how would you suggest clients, uh, and lawyers handle that sort of healthy, natural conflict in a way that makes [00:10:00] their relationships stronger?

[00:10:02] Heather Pelaez: Um, to kind of re just reiterate listening is, is super important. Even if you already know you're gonna disagree with what the client is suggesting. So I'm gonna say it from a lawyer perspective, you still should listen because even if you're going to tell them some bad news, you need to again, break it down on their level.

Um, I think then also reassuring the client that your goals are the same. You want the best outcome for your client. You know, what can happen if like an improper legal strategy is taken or if someone wants to maybe, uh, present an argument that's not supported by fact or law. Um, understanding, I think if they understand why you are saying something different than what they potentially want out of the case.

That generally, that tends to work for me. So getting them on the same page. The other thing that you can learn from that, I think as the lawyer listening, is maybe you can check your own, [00:11:00] you know, strategy or view of the case. Um, I don't know. Some, some clients, I, I just probably most of my clients, all of my clients know their case better than I do as far as the facts and their lives and what they went outta the case.

And so hearing those different perspectives I think helps me. Can shift my understanding or strategy and then maybe come up with an idea that works for both of us, but still within the bounds of what the family court can do. And just, you know what we right, what we know as practicing attorney is what can be done in a case.

So yeah, 

[00:11:31] Billie Tarascio: there is a box that we have to work Yeah. Within, and we can be creative within the box. So if you're telling us, you know, something that the court is likely to do will not work in your case, then we have to start thinking about ways to settle. Right. We can't. We can't just. We have to take what we know to be true and apply it to everything going on in your life and your case, and it's, and maintain the relationship.

So it's no small feat. 

[00:11:58] Heather Pelaez: Yeah, and [00:12:00] just comp, being honest, you cannot sugarcoat anything. Um, You can be kind and polite, but you have to be straightforward with clients. If you say anything that's, um, you know, not a hundred percent correct, the client needs to know that if there's not a guarantee and there's never a guarantee, the client needs to be fully aware of risks, the costs of what it's gonna take to get there, and the likelihood of of success.

And if they fully understand that throughout, I think again, that preserves the relationship. 

[00:12:27] Billie Tarascio: That's a great point. Um, and, and many times I have to check my own optimism. 

[00:12:32] Heather Pelaez: Yeah. I'm, I'm very,

[00:12:34] Billie Tarascio: I'm an optimist. 

[00:12:35] Heather Pelaez: Yeah. I'm the same way. And that's not our job. I know. I, we're in a pessimist, really, role I, and it's not my natural tendency.

And that took a while to learn, I think my first year or so of practice. So, I communicated with people more what I thought they wanted to hear and what than what they needed to hear. Yeah. Yeah. And what they need to hear is what I mean, that's the, you know, what we need to do, obviously, and Right.

Yeah. [00:13:00] And I don't, I've never lost a relationship with a client for being honest with them, so, right. Yeah. Giving them, yeah. 

[00:13:06] Billie Tarascio: And sometimes I actually have, I've had clients who just could not, Understand, or, you know, would not budge on their ability to, we couldn't get aligned. And at that point, it's just time to find a lawyer that you can get aligned with.

You know, because we can't be effective advocates if we just don't, if we cannot find alignment in a strategy, 

[00:13:31] Heather Pelaez: right? If you don't feel like your lawyer, like you said, understands you and has your back implicitly, then yeah, you don't want them arguing for you at trial. Um, So, yeah, that does make sense. So, mm.

[00:13:43] Billie Tarascio: Tell me what are some of your favorite types of cases? 

[00:13:47] Heather Pelaez: Um, I really do like divorces, like the whole with kids and businesses and property division because it keeps you your, it's, it's, there's no boring cases, but that touches everything. So you get to apply all of your [00:14:00] legal knowledge when you have a Divorce with kids.

Love it. Right. Um, I really love grandparents rights cases. I've done quite a few. Um, my grandmother was my very favorite person in my life, and so being able to handle those types of cases and kinda almost give back to grandmothers. And not just grandmothers, but grandfathers too.

Um, I really do like representing grandparents. Um, but then those cases, you have to be careful and manage expectations because of Arizona law. But, um, yeah, I, I do love those too. 

[00:14:28] Billie Tarascio: Talk about that for a second. Yeah. Because there was a potential case that I saw the other day where, this person, and I don't know the, all of the facts, but this person said that dad's rights had been severed or terminated, or he had lost his rights.

That's what they said. Okay. And so we don't know if that means termination or if it means that they've lost out on, Parenting time and custody. Right. And the father's mother was interested in getting grandparents rights. Mm-hmm. And the mother and the stepfather have the child all the time. Now, [00:15:00] how would you go about determining whether or not this was a good case for grandparents rights?

[00:15:04] Heather Pelaez: Well, I'd wanna talk to the grandparent, obviously. Um, I wanna know more about if the father's rights were severed and if there is, if the stepfather. Then was a, a legal parent, right? I think that, you know, determine whether we could even bring the case to begin with. But some of the facts already, just based upon what you said, seem to align with the statute.

And so oftentimes, because I don't see these very often, I'll have my statute with me and we'll just go through, I'll have that with the, the potential new client coming in and we'll go through, okay, do you meet this basis? You do you meet this requirement? And we'll go through that. And if so, then we talk about realistically, so you qualify, we can bring in case.

Realistically, what are we looking at as far as what type of visitation schedule you might be able to qualify for? I think that conversation might also go into, possibly in a loco parentis discussion depending on the relationship, well, not the relationship, but the parenting ability of mother and stepfather at that point.

I've had a couple of cases [00:16:00] where, Then it was more appropriate for the child to live with the grandparents based upon the facts of the case. And so we explored even more substantial rights than just a visitation plan, 

[00:16:10] Billie Tarascio: and those are 

very hard to get 

[00:16:12] Heather Pelaez: right. 

[00:16:13] Billie Tarascio: So the grandparents rights, I think it's just such an interesting.

Issue because the statute is very technical. And if you meet, if you meet the requirements, you can ask, you qualify to ask for grandparent visitation. And then we've got our case law that really, I think, makes grandparents rights a 

huge uphill battle. 

[00:16:32] Heather Pelaez: Right. 

[00:16:33] Billie Tarascio: Uh, and then in loco parentis is an even harder battle.

What are you seeing these days in terms of grandparent 

visitation? 

[00:16:41] Heather Pelaez: Most likely, I mean, just the ones that I've gone all the way through trial, um, the most common was one was four hours on a weekend, one weekend per month. Mm-hmm. Yeah. And that's a really common outcome I've seen. Um, we always ask for more though, and we're always expecting something like that.

When we go to trial mm-hmm. Um, [00:17:00] I have done a case where we ended up within local parentis. Right. However, and grandparents had full, um, custody of the child custody, legal decision making authority, parenting time, not just visitation. Mm-hmm. And in that case, of course, you have that higher burden, but you have parents that are detrimental to the child.

And so there is no better outcome than that. Um, but in cases where you don't have that level of the child's at risk, then I'm, I'm very honest with the outcome. With my grandparents. And sometimes when, I mean, when you're not seeing your grandchild, and it's been years that four hours, one weekend a month is everything to you.

[00:17:35] Billie Tarascio: So Right. Four hours, one weekend 

a month is enough to have a relationship, right? Yeah. And if you have none, 

then you know, you take what you can get. I, we have had other cases where, um, parents did, or grandparents did end up getting like one overnight a month. And then the other thing is that many times those cases, I think can settle.

[00:17:55] Heather Pelaez: Yes.

[00:17:55] Billie Tarascio: And that's really an ideal outcome. 

[00:17:58] Heather Pelaez: Right. And I would say, [00:18:00] um, the majority of the grandparents cases I've had have settled. The majority of the cases I have in general settle. Um, but when you go all the way, you have to always think about, okay, what does I, I'm, I'm always hoping for settlement, but my advice is always based on what's end game look like if we have to go to trial.

[00:18:15] Billie Tarascio: Yeah. Always. Yeah. What's endgame look like? I 

like that. Yeah. Um, what percentage of your cases would you say go 

to trial? 

[00:18:22] Heather Pelaez: Probably less than 10%. 

[00:18:24] Billie Tarascio: Nice. 

[00:18:24] Heather Pelaez: Yeah. 

[00:18:25] Billie Tarascio: And you, you love the courtroom. 

[00:18:26] Heather Pelaez: I love the courtroom. And I tell my clients that all the time. I'm like, okay. So I have, I seem nice. I am nice. I think I'm nice.

Um, but I like fighting and I love going to trial. I love litigating cases, but the only person who really all always benefits at trial. It's me because I'm getting paid and I feel happy at the end of the day. It's not stressful for me. It's fun. It's going to be stressful and expensive, and you can't guarantee an outcome if you go to trial.

So have some control over your case if you can. Let's try settlement, and it's always the best outcome when you can control it. 

[00:18:58] Billie Tarascio: Absolutely. 

Heather, [00:19:00] thank you so much for coming on the show. I have really enjoyed this. Um, love to do it again. Maybe hit another topic sometime. 

Yeah. Thank you so much. 

[00:19:08] Heather Pelaez: Thank you, Billie, for having me.

I appreciate this. 

[00:19:11] Billie Tarascio: And if you all have enjoyed this episode of the Modern Divorce Podcast, make sure to rank it like it, send it to your friends. If you're interested in working with Heather, she is available for all types of cases, including grandparents rights and divorced. Just give us a call at Modern Law.

Thank you. 

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