Temporary Visitation Order for Grandparents

On August 12, 2014, a decision was handed down regarding a special action that arose from a trial court’s temporary order in the paternity action brought by Molly Lambertus (Mother) against Tyler Day (Father) in which it was ordered that the paternal grandmother, Linda Faye Day-Strange (Grandmother), be allowed two hours of visitation with the Child each week.

Mother, Molly Lambertus, filed a motion to stay the temporary orders with the trial court that was denied. She then filed a special action and request for a stay. The issue on appeal was whether the trial court could enter an order for temporary visitation order for grandparents.

Issues Considered in Regards to the Temporary Order Granting Grandparent Visitation:

In matters of jurisdiction, it is found that special action jurisdiction is appropriate due to the fact that in response to a temporary order grantingvisitation rights there is no other speedy remedy by appeal.

Mother petitioned through special action that the trial court lacks subject matter jurisdiction supporting their decision to grand temporary visitation to the Grandmother. It is found that Mother’s reference to “subject matter jurisdiction” is imprecise. There are a number of applicable laws and precedents that can be used to support the decision.

She also asserts that her right to due process was violated due to the insufficient time to prepare. It was also found that this claim is unsupported as there is a well documented chain of events with plenty of notice given to both parties.

It would seem that the actual issue needing to be determined is whether the trial court had statutory (or other appropriate authority) to issue the temporary order for visitation in the case of Lambertus v. Porter. It was concluded that the court did have authority pursuant to Arizona Revised Statute § 25–402, subsection B, paragraph 2, providing that a person other than the legal parent may petition for visitation with the minor child through the Superior Court.

The court considered the request in consideration of the child’s best interests and in pertaining to the child being born out of wedlock and the parents not being married at the time the petition was filed. Arizona Revised Statutes § 25–404(A) (Supp.2013) allows for a party involved in the legal decision making or parenting time proceedings to move for temporary orders. The trial court considered the Grandmother’s intervention in the paternity action as “involvement” in the legal decision making and parenting time proceedings and, therefore, the court of appeals felt she was qualified to file for temporary orders.

The Mother argues that the Grandmother is not a part of the legal decision making and parenting time proceedings as it does not specify “visitation” as being part of the process.

While Arizona law specifically identifies that a trial court may grant visitation rights to non-parents at the court’s discretion and according to the child’s best interests, the legal parents’ opinion of what best serves the child should be given extra consideration. Given that information, and the fact that no statute gives a trial court the actual legal ability to award visitation to any nonparent at a temporary orders proceeding, it was found the court in this particular case acted in excess of its own authority.

Considering the Plain Language of the Law and “Intent”:

To summarize, the majority opinion in this case appears to be in conflict with the plain language of the law, particularly definitions of “parenting time” and “visitation.” It is particularly interesting to point towards the recent revisions of two of the statutes in reference to this case (§ 25–404(A) and § 25–401).

Their recent revisions in combination with the constitutional presumptions afforded to parents to raise their children, should lead us to conclude that the plain meaning of the terms should be seen as the best indicator of intent unless the verbiage is ambiguous or leading to an interpretation that is obviously inappropriate.

The fact that the legislative scheme names specific classes and/or parties eligible for visitation obviously suggests that the legislature had no intention of granting visitation to third parties not specified. It becomes apparent that the trial court lacked the authority for their decision to grant a temporary order providing visitation to the grandmother and the mother’s request for relief is granted by way of vacating the temporary visitation order.