Arizona Family Law Appellate Year in Review: 2022, Part 1

Arizona Family Law Appellate Year in Review: 2022, Part 1

Here’s the beginning of my annual Arizona Court of Appeals’ recap for family law cases.  In 2022, we have a total of thirteen (13) reported COA opinions (two were consolidated), all out of Division One; plus one Special Action decision, and one Arizona Supreme Court family law opinion.    At least three of the reported opinions (Huey, Gish, and Brucklier) have Petitions for Review pending at the Arizona Supreme Court as of 1-1-2023.

These fourteen COA opinions and one Supreme Court opinion can be broken down by subject, so this post, Part I, is the opinions relating to custody (legal decision-making) and parenting time:

Release of a parent’s mental health records in a custody proceeding.  JF v. Hon. Como (CF = real party in interest)    This is the family court Special Action decision.   The issue is whether the superior court may order a parent to release his mental health records (these related to treatment for addiction) for in camera review by the court in a child custody action for the court to determine what records should be released for use in a custody evaluation.    The answer is yes, with limitations, because where interests in the psychologist-patient privilege directly conflict with the court determination of the best interests of a child in a custody proceeding, the child wins.  This case included some specific facts which may mean it wasn’t the perfect case to decide this issue (among other things, there may have been a waiver of the privilege based on Father’s actions and court filings; and the underlying transcripts were not provided to the Court of Appeals to review exactly what was said in the trial court proceedings). In the end, the COA determined that release of one year of mental health records, subject to review by the trial court before release, was appropriate.  I discussed JF v. CF in more detail in this post.  

COBIs and TIs as court-appointed professionals.         Gish v. Grayson    The primary issue in Gish was whether the court can appoint a professional (usually a mental health provider) who may decide if a parent is entitled to unsupervised or increased parenting time (sometimes known as “step-up” parenting time).    The third party professional is usually (in Arizona) titled as a Therapeutic Interventionist (TI) or a Court-Appointed Behavioral Interventionist (COBI).   The answer to the primary question is no, an outside professional cannot make determinations about supervised parenting time nor can this person modify or add additional parenting time, as those decisions can be made only by a court.       I discussed Gish in more detail in this post.

The appointment of those outside professionals (TI or COBI) can be done only with a specific finding on the record that the parties can afford those professionals.  Without that finding, the court cannot appoint outside professionals.

A secondary issue in Gish was whether the court can award sole legal decision-making to a parent who has essentially no (or only supervised) parenting time, and the answer is yes.

Parenting time presumption and changes in parenting time from temporary to final orders.  Smith v. Smith Smith established, once again, that Arizona does not have a legal presumption of equal parenting time, citing Woynton v. Ward.   Smith further established that the court is not required to provide specific written findings about why it orders less than equal parenting time.    The Smith court noted that a change of parenting time from temporary orders to final orders is not a “modification” of parenting time, as the modification statute (ARS 25-411J) applies only to final orders, so the “first ruling subject to §25-411” was the Decree of Dissolution.

Changing a child’s name.   Munguia      This case, after weighing numerous factors about changing a child’s name, resulted in an approximately 18-month child (and a 2 ½ year old sibling) possibly ending up with multiple names.   Citing Pizziconi v. Yarbrough, the court noted that the best interests factors to consider in changing a child’s name include: the child’s preference; the effect of the change on the preservation and development of the child’s relationship with each parent; the length of time the child has borne a given name; the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed name; the motive of the parents and the possibility that the use of a different name will cause insecurity or a lack of identity.

Grandparents’ rightsBorja

In this case, the COA reversed a trial court’s orders that a parent must allow grandparents to have significant input to the children’s lives, including orders that the grandparents had great control over their visitation schedule, and the parent was required to give the grandparents a lot of information about the children’s schedules and activities. The trial court also required the parent to have the children make scheduled calls to the grandparents. The trial court’s orders appeared to directly violate Troxel v. Graville and Friedman v. Roels, both of which recognized a parent’s fundamental right to raise children  without interference, and which held that a parent’s opinion is entitled to “special weight” over rights asserted by a grandparent or third party. The over-reaching trial court orders in this case were overruled in favor of more “minimally intrusive” orders.

3rd party custodial rightsHustrulid v. Stakebake  

This case involved a natural Father’s attempt to obtain third-party custodial rights under ARS 25-409, after his parental rights were terminated and the children were adopted by his sister.  Procedurally, this appeal was treated as a Special Action.   Initially, the court noted that nothing in ARS 25-409 precludes a natural parent whose parental rights were terminated from seeking in loco parentis rights, as the statute provides that any “person other than a legal parent” may seek such rights.  

A third party cannot be granted joint legal decision making.   This was originally established in Thomas v. Thomas (2002) and remains the law in Arizona.

The standard for dismissal of a third party’s petition for in loco parentis rights was discussed, based on the statute’s requirement that the court “shall summarily deny” a third-party’s petition for legal decision-making and placement “unless it finds that the petitioner’s initial pleading establishes” that the required elements “are true.”  This standard for dismissal is different than the standard in Arizona Rules of Civil Procedure 12(b)(6) for dismissal (which requires the court to assume well-pled facts are true, for purposes of a Motion to Dismiss).  The Hustrulid court determined that the trial court was correct in holding an evidentiary hearing to determine if this third-party Petition should be dismissed:

[A]t the outset of the proceeding, to avoid summary denial, a third party’s “initial pleading” need only contain well-pled factual allegations that, if proven, would establish the truth of each of the four § 25-409(A) elements.    To this end, although conclusory statements will not suffice, simply because the legal parent disputes the third party’s allegations does not necessarily mean the petitioner will be unable to offer sufficient proof of the elements at the resulting evidentiary hearing. After the court hears evidence presented by the third party and the legal parent, it then must decide whether the petitioner has proved the § 25-409(A) elements.

The COA went on to liken the standard of proof to the 25-411L standard for modification of a decision-making or parenting time order:

This framework is analogous to the procedure for deciding whether to grant a petition to modify legal decision-making or parenting time. Under A.R.S. § 25-411(L), the superior court “shall deny the motion [to modify] unless it finds that adequate cause for hearing the motion is established by the pleadings, in which case it shall set a date for hearing on why the requested modification should not be granted.” Like § 25-409(A), § 25-411(L) authorizes the court to summarily deny a motion that lacks sufficient factual allegations. The pleading requirement in § 25-411(L) is intended to “spare the parties and the child the cost, disruption, and potential trauma of a full modification hearing unless the petition and supporting documents show ‘adequate cause.’”

Both procedures for dismissal (of either a 409 or a 411L petition) were deemed to be similar “screening functions”.

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