Appeal from the Superior Court in Maricopa County. No. FC2013-054667. The Honorable Jay M. Polk, Judge.
Berkshire Law Office, PLLC, Phoenix, By Keith Berkshire, J. Alexander Dattilo, Megan Lankford, Counsel for Respondent/Appellant.
Rubin & Ansel, PLLC, Scottsdale, By Yvette D. Ansel, Counsel for Petitioner/Appellee.
Judge Peter B. Swann delivered the opinion of the court, in which Presiding Judge Kenton D. Jones and Judge Michael J. Brown joined.
Peter B. Swann Judge:
[¶1] In 2013, the legislature amended A.R.S. § 25-409 to require that a court give " special weight" to a parent's decision to oppose visitation between a child and a nonparent. We hold that a parent opposing visitation does not bear the burden of proof under this statute, and that " special weight" means the party seeking visitation must prove that a fit parent's decision to deny visitation would substantially impair the child's best interests.
[¶2] In this case, the court ordered visitation under A.R.S. § 25-409 in favor of the former girlfriend of a fit mother. Though the court endeavored to apply the " special weight" requirement, we conclude that it misinterpreted the statutory language. The court overrode the mother's opinion because it found that her testimony explaining her reasons for denying visitation was not " credible." While credibility determinations lie within the unique province of the trial court, the credibility of the mother's motivations was not the proper legal focus of the inquiry. By focusing on the mother's personal motivations, the court effectively imposed a burden on her to justify her decision, when the burden should have been on the nonparent to demonstrate why visitation was necessary to protect the child's interests. On this record, the adverse credibility determination should not have resulted in the automatic rejection of the mother's decision to deny visitation. We therefore reverse and remand.
FACTS AND PROCEDURAL HISTORY
[¶3] Tashina Forsen (" Mother" ) gave birth to a daughter (" Child" ), out of wedlock, in April 2005. Mother never married Child's father, and his parental rights were eventually severed.
[¶4] Mother began dating Nicole Goodman in mid-2006, and the couple moved in together in November 2006. With the exception of one or more brief separations, Mother and
Goodman lived together with Child for the next five years. The couple permanently separated in October 2011. For two years after the separation, Mother allowed Goodman to spend time with Child on a regular basis -- initially four days a week after school and later, every weekend when Mother's work schedule changed. But in September or October 2013, several months after Mother married her current wife, Mother unilaterally discontinued Goodman's visits with Child. Goodman promptly petitioned for visitation, and the superior court set an evidentiary hearing.
[¶5] Mother opposed visitation, explaining to a court-appointed parenting-conference provider that Goodman fought with her current girlfriend in front of Child, and the fights upset Child. According to Mother, she and Goodman had mutually engaged in domestic violence during their relationship, and Mother did not want Child to be exposed to similar interactions between Goodman and her girlfriend. The parties agreed that Mother had struck Goodman during a 2008 altercation but disputed whether Goodman had ever struck Mother. Goodman acknowledged that she and her current girlfriend had argued in front of Child, and she stated that she had yelled and slammed a door. Child spontaneously informed the parenting-conference provider that Goodman and her girlfriend " keep fighting over and over again," and reported that Goodman was " really mean" ...