366 P.3d 587
Ariz. Ct. App.2016Background
- Mother (Tashina Forsen) had a long-term relationship with Nicole Goodman; Goodman regularly visited Child for years but Mother ceased visits in 2013 after remarrying.
- Goodman petitioned for nonparent visitation under A.R.S. § 25-409; the superior court granted limited visitation and found Mother not credible about domestic violence and discipline concerns.
- Mother is an undisputedly fit parent; she objected to visits based on Goodman’s prior physical discipline of Child and Goodman’s fights with her current girlfriend in Child’s presence.
- The trial court said it had given “special weight” to the parent’s decision but nonetheless rejected Mother’s reasons and awarded visitation, imposing restrictions on the girlfriend’s presence and some communication by Mother.
- Mother appealed, arguing the court misapplied the 2013 amendment to § 25-409 requiring courts to give “special weight” to parental decisions denying visitation.
Issues
| Issue | Mother’s Argument | Goodman’s Argument | Held |
|---|---|---|---|
| Meaning of “special weight” in A.R.S. § 25-409(E) | "Special weight" prevents imposing a burden on a fit parent; parent’s decision should control absent substantial harm to the child. | The trial court could weigh credibility and find parent’s reasons insufficient to deny visitation. | "Special weight" requires robust deference to fit parents; burden lies with nonparent to prove denial would clearly and substantially impair the child’s best interests. |
| Burden of proof for opposing visitation | Mother argued she should not bear any burden to justify denial of visitation. | Goodman argued Mother must explain or justify the decision; court asked Mother to present evidence against visitation. | Court erred by effectively placing burden on Mother; nonparent must prove substantial harm from denial. |
| Role of credibility findings in applying § 25-409(E) | Credibility of a parent’s motives is not the dispositive legal focus; adverse credibility shouldn’t automatically negate parental decision. | Trial court relied on credibility findings to reject Mother’s stated reasons. | Credibility determinations are for the trial court, but here focusing on Mother’s motives improperly shifted the legal burden and was error. |
| Whether visitation may be ordered despite fit parent’s objection | Mother: fit parent’s decision should prevail unless nonparent meets heavy burden. | Goodman: visitation appropriate based on relationship, best-interest factors, and the court’s findings. | A fit parent’s decision can be overridden, but only when nonparent proves denial would clearly and substantially impair the child’s interests; remand to reweigh under correct standard. |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (2000) (plurality holding courts must give special weight to fit parents’ decisions on visitation)
- McGovern v. McGovern, 201 Ariz. 172 (App. 2001) (applying Troxel principles to Arizona nonparent-visitation statute)
- Egan v. Fridlund-Horne, 221 Ariz. 229 (App. 2009) (recognizing fewer rights for nonparents and limits on in loco parentis claims)
- Oliver v. Feldner, 149 Ohio App.3d 114 (Ohio Ct. App. 2002) (interpreting “special weight” as extreme deference to parental decisions)
- In re C.T.G., 179 P.3d 213 (Colo. App. 2007) (requiring clear-and-convincing evidence to rebut parental decision in third-party visitation cases)