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In re Marriage of Friedman

Supreme Court of Arizona

June 8, 2018

In Re the Marriage of Lisa J. Friedman, Petitioner/Appellant, and David C. Roels, Jr., Respondent, Claudia Roels and David C. Roels, Sr., Intervenors/Appellees.

          Appeal from the Superior Court in Pima County The Honorable Alyce L. Pennington, Judge Pro Tempore No. D20103718

         Opinion of the Court of Appeals, Division Two 242 Ariz. 463 (App. 2017)

          Dawn Wyland (argued), Wyland Law, P.C., Tucson, Attorney for Lisa J. Friedman

          Susan M. Schauf (argued), Susan M. Schauf, PLLC, Tucson, Attorney for Claudia Roels and David C. Roels, Sr.

          JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES TIMMER, BOLICK, GOULD, and LOPEZ joined.

          OPINION

          JUSTICE PELANDER

         ¶l Under Arizona's third-party-visitation statute, the superior court may grant visitation rights to a person other than a child's legal parent upon a finding that "visitation is in the child's best interests." A.R.S. § 25-409(C). In making that discretionary determination, the court "shall give special weight to the legal parents' opinion of what serves their child's best interests." § 25-409(E). We hold that when two legal parents disagree about whether visitation is in their child's best interests, both parents' opinions are entitled to special weight under § 25-409(E). We further hold that under those circumstances, neither parent is entitled to a presumption in his or her favor and the parents' conflicting opinions must give way to the court's finding on whether visitation is in the child's best interests.

         I.

         ¶2 We view the record in the light most favorable to supporting the family court's visitation order. See Johnson v. Johnson, 131 Ariz. 38, 44 (1981). Lisa Friedman ("Mother") and David Roels, Jr. ("Father") married in 2001, had two children together (M., born in 2003, and R., born in 2005), informally separated in 2010, and divorced in 2011. Under the dissolution decree, Mother obtained sole custody of, and legal decision-making for, the children, but Father was entitled to supervised parenting time for two four-hour periods every week. The supervision requirement was partly based on Father's hospitalization for psychiatric issues and his abusive behavior toward the children, which included kicking M. at least once. After Mother and Father separated, the children began seeing various therapists for post-traumatic stress disorder and other anxiety-related issues. Father attended some of the children's therapy sessions.

         ¶3 Before Mother and Father's divorce, Father's parents, David Roels, Sr. and Claudia Roels ("Grandparents"), were involved in the children's lives, attended their sports practices and other special events, and provided child care. After Mother and Father separated, however, Grandparents had almost no contact with the children for nearly four years, largely because Mother obstructed Grandparents' attempted interaction by, for example, withholding gifts and cards they sent the children, refusing to accept Grandparents' certified mail, and not responding to their emails.

         ¶4 In April 2014, Grandparents sought to re-establish their relationship with the children by filing a petition for visitation pursuant to A.R.S. § 25-409(C). In December, the family court entered a temporary order allowing Grandparents to participate in Father's supervised visits for one hour per month. Pursuant to that order, Grandparents saw the children monthly for eight one-hour sessions between January and August 2015. Supervisory staff who documented those visits described Grandparents as being "well received" by the children and their interaction as warm and affectionate, and noted Grandparents' remarkable preparation for their visits. The children were more engaged in the visits when Grandparents were present, which also seemed to improve the children's interactions with Father.

         ¶5 The trial on Grandparents' visitation petition occurred over two days in August 2015. On the morning of the trial's first day, Mother and Father stipulated to a parenting plan (the "Parenting Plan") that gave each parent joint legal decision-making authority, with Mother having "final legal decision making" authority if they disagreed. When Mother and Father presented the Parenting Plan to the family court for approval, Father stated, without objection by Mother, that the Parenting Plan did not contain "an agreement on ... whether or not his parents can be present at his parenting time."

         ¶6 At trial, Mother, Father, and Grandparents testified and presented testimony from other witnesses. Two therapists whom Mother called - Beth Winters and Karen Morse - testified that visitation with Grandparents exacerbated the children's PTSD and anxiety. Both therapists acknowledged, however, that their opinions were partly based on "selected" visitation reports Mother provided, and they had difficulty explaining why visitation would harm the children. Mother also testified that she believed visitation would be harmful to her children's mental health and would compromise their relationship with Father. But Mother later conceded that the children struggled with anxiety before Grandparents' visitation began.

         ¶7 Father and Grandparents presented testimony from staff who supervised Grandparents' visitation with the children. Those witnesses described the visits as positive and warm. Father testified about having been diagnosed with severe depression and explained his treatment for that condition. Father also expressed his belief that visitation would benefit the children and that "it's important [for them] to have their own relationship" with Grandparents. Grandparents testified about their efforts to resume their relationship with the children, characterized the court's preliminary visitation order as "a miracle, " and explained that their primary focus was "just to keep spending time with the children" because they "love them very much." As for any impact visitation would have on the children's relationship with Father, Grandparents explained that they would be willing to "work that out with him" because "his time with [the] children is most important."

         ¶8 The family court granted Grandparents' visitation petition. In its ruling, the court made extensive findings of fact, explained its reasoning in detail, and specified the nature and amount of Grandparents' visitation. After stating that it gave "deference to Mother's position" and "accept[ed] and... applie[d] the [rebuttable] presumption that Mother has and shall continue to make decisions that are in the children's best interests, " the court found that "it is in the children's best interests that grandparents have visitation with the children." The court also found that Mother was "motivated by a desire to exclude the grandparents in part because of her relationship with them" and that Mother's witnesses based their opinions on limited information and did not clearly explain how they arrived at certain conclusions. Finally, the court found that Grandparents had a warm, bonding relationship with the children and were motivated to seek visitation "by a desire to influence the children in a positive way [and to] love, nurture and care for the children."

         ¶9 In a split decision, the court of appeals affirmed, reasoning that Father's opinion on visitation, not only Mother's, was entitled to "special weight" under Troxel v. Granville, 530 U.S. 57 (2000) (plurality), and A.R.S. § 25-409(E) because he "was not found to be an unfit parent." In re Marriage of Friedman & Roels, 242 Ariz. 463, 466-67 ¶ 12, 468 ¶ 18 (App. 2017). The court concluded that the family court "applied the proper standards in awarding visitation to Grandparents." Id. at 468 ¶ 19. Addressing Mother's and the dissent's assertion that Goodman v. Forsen, 239 Ariz. 110 (App. 2016), retroactively applied and contravened the family court's ruling, the court of appeals found that case "significantly distinguishable" and declined to "extend its holding to the very different situation presented here." Friedman, 242 Ariz, at 468-69 ¶¶ 20-21. Ultimately, the court ruled that the family court did not abuse its discretion in granting "limited visitation" to Grandparents because they "demonstrated that [Mother]'s decision to bar them from visitation was not in the children's best interests." Id. at 469 ¶ 22.

         ¶10 We granted review because this case presents recurring issues of statewide importance - the intersection of parents' constitutional rights regarding their children and Arizona's statutory scheme relating to grandparents' claimed visitation rights. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

         II.

         ¶11 We review the interpretation of statutes and constitutional issues de novo. Brenda D. v. Deft of Child Safety, 243 Ariz. 437, 442 ¶ 15 (2018). "If a statute's language is subject to only one reasonable meaning, we apply that meaning." Bell v. Indus. Comm'n of Ariz., 236 Ariz. 478, 480 ¶ 7 (2015). And when "statutes relate to the same subject, " we construe them "together ... as though they constitute[] one law" in order to "give effect to all the statutes involved." Pima Cty. ex rel. Tucson v. Maya Const. Co., 158 Ariz. 151, 155 (1998).

         ¶12 A.R.S. §§ 25-401 through -416 establish the framework Arizona courts use to resolve legal decision-making and parenting time issues relating to children in statutorily defined circumstances. See A.R.S. § 25-402(B). Relevant here is § 25-409, which addresses, among other things, third-party visitation rights. That statute allows "a person other than a legal parent" to "petition the superior court for visitation with a child, " and generally authorizes the court to "grant visitation rights during the child's minority on a finding that the visitation is in the child's best interests." § 25-409(C). As amended in 2013, the statute also provides that "[i]n deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents' opinion of what serves their child's best interests" and prescribes a non-exhaustive list of "relevant factors" the court shall consider. § 25-409(E). For ...


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