Temporary Orders for Grandparents

Temporary Orders for Grandparents Visitation in Arizona

The Arizona Court of Appeals addressed a Special Action appeal in the grandparents visitation case of Lambertus v. The Honorable Gerald Porter.  The case began as a paternity case with Linda Faye Day-Strange seeking to establish paternity to establish Tyler Day (“Father”) as the natural father of their child.

Father signed an Voluntary Acknowledgement of Paternity and Mother amended the child’s birth certificate listing Father as the biological father of the child.  At the time the paternity case was subsequently filed, Father was serving a lengthy prison sentence, 

Grandmother filed a motion to intervene in the paternity action. Mother did not file an objection to Grandmother’s Motion to Intervene in the case. The trial court, therefore, granted Grandmother’s Motion to Intervene in the case and, therefore, named Grandmother as a property party in the case.

In February of 2014, Grandmother filed a petition for grandparent visitation as well as a motion for temporary orders granting her visitation. Mother filed a motion to strike Grandmother’s motion for temporary orders. The trial court held a Temporary Orders Hearing after which the court issued a temporary order granting the grandmother parenting time with the child two hours a week.

In that same month, a Court Appointed Advisor (CAA) began investigating Mother’s concerns about Grandmother, as well as Father’s concerns about Mother. Mother was ordered to undergo a hair follicle test. Grandmother was ordered to undergo random alcohol testing. The trial court held an evidentiary hearing on temporary orders in April of 2014.

The court ruled that Grandmother should have two hours of visitation with the child every week on a temporary basis at a pizza restaurant, unless both parties agreed to a different location. The court also ordered Grandmother’s random alcohol testing stopped with the stipulation that, any time Mother had concerns about her sobriety during a visit, Mother could immediately stop the visit and Grandmother would immediately report for alcohol testing.

Mother filed for a stay of the temporary orders with the trial court, which was denied. Mother then filed a Special Action appeal  to the Arizona Court of Appeals and a Motion to Stay the trial court’s ruling, which was also denied by the Arizona Court of Appeals.

A Special Action is a special appeal that is usually filed during the pendency of a case, as opposed to a normal appeal which is filed when the final orders have been issued.  There are limited reasons permitting a Special Action appeal of a family court’s orders.

The Arizona Court of Appeals felt a Special Action appeal in this was appropriate in this case due to the fact that the order complained of was a temporary order that granted Grandmother visitation rights, that Temporary Orders are not appealable after final orders are entered, and there was not another adequate and speedy appellate remedy.

Mother argues in her Petition for Special Action the trial court lacked subject matter jurisdiction to grant temporary visitation to Grandmother. Additionally, Mother argued her right to due process was violated by the trial court as she claimed she had insufficient time to prepare for the Temporary Orders Hearing.

The Arizona Court of Appeals found the trial court had jurisdiction to consider Grandmother’s request for visitation. The Superior Court is granted jurisdiction of “cases and jurisdictions in which exclusive jurisdiction is not vested by law in another court” by the Arizona Constitution. Additionally, the Superior Court has original jurisdiction over paternity cases.

Mother’s special action petition raised the question of whether or not the trial court had the authority to issue the temporary orders for grandparent visitation. The Arizona Court of Appeals ruled the trial court had the authority to issue a Temporary Order granting the Grandparent’s request for visitation. The Arizona Court of Appeals found no merit to Mother’s argument that she was denied Due Process at the Temporary Orders hearing.

Grandmother’s petition for visitation was filed on February 5, 2014. The CAA was appointed at the February 28, 2014 hearing. The review hearing took place on April 18, 2014. When the review hearing was scheduled, the judge advised both parties that no temporary orders would be issued on that date, but that another hearing would be held within a week if necessary.  The evidentiary hearing was set for April 21, 2014 during the April 18, 2014 review hearing.

The issues that were addressed by the Arizona Court of Appeals included a discussion of whether a Grandparent was permitted to be granted temporary visitation with a child before final orders are issued in the case.

The Court of Appeals looked at Arizona Revised Statute Section 25-404 that grants a trial court with the authority to issue temporary child visitation orders during the pendency of the case.  The Court of Appeals also looked at Arizona Revised Statute Section 25-401 to determine who the legislature intended to be permitted to request temporary visitation orders.

The Arizona Court of Appeals concluded that the trial court has all the powers necessary to exercise its jurisdiction over child custody cases, pursuant to Arizona Revised Statute Section 12-123(B) and, further, that the trial judge had the inherent authority to conduct such hearings and issue such orders that are necessary to provide justice in a case, pursuant to the prior Arizona Court of Appeals case in Arpaio v. Baca.

The Court of Appeals concluded that the exercise by the trial court to issue temporary visitation to Grandparent was necessary to administer its jurisdiction and authority over child custody and visitation cases.

Follow Hildebrand Law, PC on Facebook

[custom-facebook-feed]