Domestic Relations Court Prohibited from Providing Custody Rights to Step Parents
Arizona law only allows an actual parent to file custody and visitation actions. Can a stepmother seek custody when she has been the primary caregiver for years? The Court of Appeals considered this issue in Olvera v. Superior Court, 815 P. 2d 925 (1991).
Facts of the Case
Mr. Olvera and Mrs. Olvera were married in 1981. Mr. Olvera was the custodial parent for a daughter from a prior marriage. She was 3 years old when Mr. Olvera and Mrs. Olvera married. Mrs. Olvera was the primary caretaker of the girl for the nine years of the marriage. Mr. Olvera and Mrs. Olvera divorced in 1990.
The daughter was 12 years old. Mrs. Olvera claimed that it would be in the child’s best interest if she were awarded custody. The court awarded her temporary custody, over Mr. Olvera’s jurisdictional objections. The Court of Appeals granted special action jurisdiction to determine whether the court could grant custody to a step-parent.
Arizona Law Regarding Custody
Two avenues exist in Arizona law for seeking custody of a minor child. One is the domestic relations law. The other is the juvenile code. The requirements for maintaining an action, and obtaining custody, differ significantly in domestic relations court than in juvenile court. Domestic relations law is largely concerned with custody disputes between parents. The juvenile code deals with cases of neglect and abuse that affect the welfare of children.
Stepparents Are Not Parents under Domestic Relations Law
Under the domestic relations law, only parents can file for custody of minor children. A non-parent can only seek custody if the child is not in a parent’s custody. This is consistent with the Uniform Marriage and Divorce Act from which Arizona law was derived. If a non-parent wants to acquire custody, she must commence proceedings under the stringent standards of the juvenile code. This protects a parent’s rights.
Intervention by the juvenile court only occurs when a parent neglects or abuses the child. The definition of “parent” does not include a stepparent in domestic relations cases. One Arizona case held otherwise: Bryan v. Bryan, 645 P.2d 1267, 1269-70 (1982). That case held the trial court had jurisdiction to award custody to a stepparent in a dissolution action.
However, the Court of Appeals in this case disagreed with the Bryan ruling. It found that the legislature intended to restrict divorce custody awards to children “common to” the couple. That means that courts can only award the custody of children to their natural or adoptive parents. In short, a court has no power to award custody to anyone but a parent under domestic relations laws.
The Court of Appeals ruled that trial court did not have jurisdiction to award custody to Mrs. Olvera. It reversed the judgment of the trial court. It remanded the case for further proceedings consistent with this opinion.
You should be aware there is a an exception to the ruling in this case, which is found in Arizona Revised Statute Section 25-409 if a step parent or other person has been treated by the child as a parent.