Court of Appeals of Arizona, First Division, Department D
Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure
Appeal from the Superior Court in Yavapai County Cause No. P1300DO201000572 The Honorable Ethan A. Wolfinger, Judge Pro Tempore (Retired)
Nathan Young Petitioner/Appellant
Steven C. Dagilis Prescott Attorney for Respondent/Appellee
PATRICIA A. OROZCO, Judge
¶1 Nathan Young (Young) appeals the trial court's order denying him in loco parentis visitation. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Young and Margaret Van Den Acre (Mother) lived together as friends between 2001 and August 2009. During that time, Mother gave birth to a son (Child) in June 2005.
¶3 In August 2009, Young went on a trip to Puerto Rico and became ill. Shortly thereafter, he went to Missouri to receive treatment for his illness. During this time, Child and Mother moved from Chandler, Arizona, where they had been residing with Young, to Prescott, Arizona. In December 2009, Young returned to Arizona in search of Child. He approached Mother and Child in a shopping center parking lot and an altercation between Young and Mother ensued. Mother subsequently obtained an order of protection (OOP) against Young. Apart from the incident in December 2009, Young has not seen or spent any time with Child since August 2009. On June 21, 2010, Young filed a petition for custody or, in the alternative, reasonable visitation pursuant to Arizona Revised Statutes (A.R.S.) section 25-415 (Supp. 2012) (repealed 2013).
¶4 At the hearing on June 29, 2012,  Mother testified that Child does not remember or ask about Young. She stated that Child is doing well in school and is involved in activities such as Cub Scouts and attending church. Mother also testified that she does not believe that it is in Child's best interest to have contact with Young because she does not "feel that there is any kind of bond" between Young and Child. Mother further testified that any contact with Young "would be very hurtful to [Child] and make [Child] very unbalanced in his emotional state." However, Mother did concede that at one point, Young had a relationship with Child and was present when she gave birth to Child. She also conceded that Young attended some of Child's doctor's appointments and surgeries during the time they lived together.
¶5 Young testified that he was as equal a caregiver to Child as Mother was. He stated that he treated Child like his own son and that he financially provided for Child. Young claimed that Child looked up to him as a father figure and that he would like to continue that relationship. Young also testified that Mother was a good parent to Child, that he had no significant issues with Mother's care of Child, and that she never abandoned or neglected Child.
¶6 During the hearing, Mother's counsel moved for a directed verdict under A.R.S. § 25-415.B, alleging that Young had not proven by clear and convincing evidence that custody of Child should not be awarded to Mother. The trial court granted this motion but reserved ruling on visitation until the conclusion of the hearing.
¶7 After reviewing exhibits and the testimony of the witnesses, the trial court concluded that Young had a meaningful relationship with Child from June 2005 until August 2009. It found that there was evidence that Mother had viewed Young as a guardian to Child at one point based on pictures, gift receipts and the fact that she listed Young as a guardian to Child on paperwork at a child care facility. However, the trial court also found that, in spite of Young's efforts to contact Child, there had been no contact between Young and Child for almost three years. It further found that transcripts of phone calls made by Young to Mother showed "that there was a level of hostility and certainly a significant fracture in the relationship [Young] previously had with [Mother]."
¶8 After considering the factors for visitation listed under A.R.S. §§ 25-403 (Supp. 2012) and -409 (2007) (repealed 2013), the trial court concluded that it was not in the best interest of Child for the court to award visitation to Young. It based its ruling on the lack of interaction and interrelationship between Young and Child for the past three years, the past issues of domestic violence, the inability of Young and Mother to ...