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Third Party and Emergency Child Custody in AZ | Hildebrand Law, PC

Mon 4th Dec, 2017 Arizona Child Custody Laws

The Arizona Court of Appeals accepted Special Action Jurisdiction in the case of Chapman vs. Pritchard to review a trial court’s ruling.

The petitioner, in this case, is Ms. Chapman (“Mother”) who brought a case against her parents, Mr. and Mrs. Pritchard (“Grandparents”) as it pertained to Mother’s six children.

Mother was the sole parent following the death of her husband. Mother, under the appeals process, challenged the family court ruling giving Grandparents sole legal decision-making authority and sole parenting time for Mother’s minor children.

Mother’s two arguments in her appeal were that the superior court lacked jurisdiction to enter the ruling and that the “best interest standard” to ruling on the issue was wrongly applied.

In 2015, Mother became a widow with six children, only one of whom was 18 years old. At the time she became a widow, she was a member of a Christian church and Grandparents were in her children’s lives on a regular basis and had been in their lives since birth.

In 2016, Mother met a man on a dating site by the name of Mr. LaJoie. In Sept of 2016, LaJoie came to Arizona from California to meet Mother, her children, and her parents.

There were immediate disagreements, between LaJoie and Mother’s father, but the most significant disagreement was about religion since LaJoie did not believe in organized religion or in entering church buildings.

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In spite of these disagreements, within a month, LaJoie brought his teenage son from California and moved into Mother’s home. The couple did not legally marry but did host a “home church” which banished celebrations and ended relationships with family and friends.

Shortly after the major changes in the family dynamics at Mother’s home, an “intervention” was held with Mother, the children, LaJoie, Mother’s parents and about 25 of Mother’s friends and family.

Though it was voiced that Mother seemed to be controlled by LaJoie and possibly brainwashed, Mother would not relent and told her three sons they were free to live with Grandparents if that would make them happy.

They left the next day. The three minor daughters remained in Mother’s home and were restricted from seeing Grandparents as often as they had in the past.

A short time later, in January of 2017, Grandparents petitioned for visitation rights to the three daughters under A.R.S. § 25-409(C). Grandparents had helped raise the girls from birth and simply wanted to regain a reasonable time with them.

While the petition was pending, several events occurred which caused Grandparents to amend their petition to request temporary sole legal decision-making authority and sole parenting time of the children.

Third Party and Emergency Child Custody in Arizona.

One event occurred when the daughters’ school called the police to report a mark under the eye of one of the girls.

Though LaJoie unlawfully identified himself as the girl’s father and explained the mark under her eye as an injury she received while wrestling with his friend Ogden, the officer closed the case as a non-crime.

The second event occurred when Mother, who was a breast cancer survivor, relapsed and received a diagnosis of a terminal illness.

A third event occurred when Mother and LaJoie legally married, then left the three girls with LaJoie’s son, a nanny and family friends, so the two adults could travel to Mexico for Mother’s treatment.

At the same time, Grandparents amended their petition, they also filed an ex-parte motion for emergency temporary orders for sole legal decision-making and sole parenting time.

The oldest son provided an affidavit stating his concerns about Mother’s mental stability as it related to his three young sisters’ best interests.

During this time there was also an allegation by one of the girls that she had been inappropriately touched by LaJoie’s friend, Ogden. The family court granted the emergency temporary orders.

At the evidentiary hearing on the temporary orders, Mother stated that she believed Grandparents actions were driven by their fear that LaJoie had married Mother to obtain her considerable assets upon her passing and were not driven by their concern for her children.

The mother denied that her daughters were in any danger around either LaJoie or Ogden. Summaries of each child’s interview with a psychologist all revealed their worry over Mother’s decisions, LaJoie’s control, and their united desire to not live in Mother’s home as long as LaJoie was there.

The family court affirmed its previous ex-parte temporary orders. After reviewing several best interests factors outlined in A.R.S. § 25-403(A), the court concluded that it was in the children’s best interest to grant Grandparents legal decision-making authority and parenting time.

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The court also ruled that as long as LaJoie and Ogden had no contact with the children, Mother could have supervised parenting time with her children. At this time,

Mother petitioned the court for special action review, which means a party may request the Supreme Court to issue a stay or to expedite processing of the petition for review.

Mother had two arguments. First, Mother stated that Grandparents and the family court failed to make known specific factual findings that showed that remaining in Mother’s care would be significantly detrimental to the children.

Secondly, Mother argued that even if the family court had jurisdiction to issue temporary orders, the court used a lower “best interest” standard instead of the higher “significantly detrimental” standard.

In a discussion of the first argument, the court reviewed the statutory scheme relating to a third party’s ability to petition for legal decision-making and parenting time.

The family court does have jurisdiction granted by the Arizona Legislature to conduct proceedings concerning legal decision-making and parenting time brought by “a person other than a parent.” A.R.S. § 25-402.

There are requirements that must be satisfied by “a person other than a parent” (Third Party).

First, the third party must file a petition for rights under [A.R.S.] § 25-409, in the county in which the child permanently resides. A.R.S. § 25-402(B)(2). At the time this petition is received by the family court, it must first be denied unless one of the following conditions applies:

1. The petitioner stands in loco parentis (defined as: in place of the parent) to the child. A.R.S. § 25-401(1);

2. Allowing the child to stay in a legal parent’s care would be significantly detrimental to the child;

3. No court of competent jurisdiction has entered orders of legal decision-making or parenting time within the past year;

4. One legal parent is deceased A.R.S. § 25-409(A)

5. The petition must be supported by an affidavit containing detailed facts supporting special claims A.R.S. § 25-409(D);

Emergency Child Custody in Arizona: Third Party.

Once the family court determines that the petition sufficiently establishes these factors, the court then examines the petition’s merits. During this examination, A.R.S. § 25-409(B) imposes a rebuttable presumption that “awarding legal decision-making to a legal parent serves the child’s best interests.”

So, every effort is made to maintain a legal parent as the decision-making authority. Also, although best interests considerations under A.R.S. § 25-403(A) normally require proof by a preponderance of the evidence, specific findings on the record are not required when the family court makes a temporary order.

The court’s role is to determine if there are “compelling circumstances” that require or warrant the court to step into a situation between a child and the legal parent.

The court’s role is not to determine the best situation for the child. Mother argued that the court did not provide proof that staying with her would be significantly detrimental to the children.

Contrary to Mother’s argument, the criteria in A.R.S. § 25-409(A) are substantive elements that simply need to be pled to prevent dismissal.

The statute only requires that grandparents’ initial petition establish in loco parentis standing, and significant detriment to the children if they were to stay with the legal parent, and their initial petition did satisfy those requirements.

It was in the initial petition that the oldest son provided an affidavit of specific claims which satisfied the court requirement since it is interpreted as “allegations” and not as proven fact at this stage in the process.

It was also shown that since birth, all six children had looked to Grandparents over a substantial amount of time to provide basic needs and a healthy positive relationship. Grandparents’ petition sufficiently satisfied all criteria to request temporary sole legal decision-making authority and sole parenting time of the children.

Furthermore, the family court did not err by failing to afford special weight to Mother’s desire and did not violate her right to parent. For the foregoing reasons, the court accepted special action jurisdiction but denied relief.

If you have questions about third party and emergency child custody in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have over 100 years of combined experience successfully representing clients in child custody and family law cases.

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