Flaigan v. KittelsonFlaigan v. Kittelson
COUNSEL
Whitney Whitney Baldridge Atkinson, Kingman
By Jacob W. Baldridge and Christopher Stafford (Rule 39(c) Certified Limited Practice Graduate)
Counsel for Petitioner/Appellee
Aspey Watkins & Diesel, PLLC, Flagstaff
By Michael J. Wozniak and Morgan M. Sansone
Counsel for Respondent/Appellant
OPINION
Presiding Judge Paul J. McMurdie delivered the Court‘s opinion, in which Judge Samuel A. Thumma and Judge Kent E. Cattani joined.
McMURDIE, Judge:
¶1 Patrick Kittelson (“Father“) appeals from a third-party visitation award of his children to Joseph Flanigan (“Boyfriend“), the boyfriend of his deceased ex-wife, Brandy Tuitama (“Mother“). Father argues that the superior court failed to afford his determination of the children‘s best interests “special weight” as required for a fit parent under Arizona Revised Statutes (“A.R.S.“)
¶2 We hold that to recognize the special weight afforded a fit parent‘s decision on third-party visitation, the individual requesting such visitation must show by clear and convincing evidence that the visitation is in the child‘s best interests, and the court must find and explain why the fit parent‘s best-interests determination is incorrect. Although sufficient evidence in the record could support a finding that some visitation with Boyfriend was in the children‘s best interests, the court failed to find and explain why its assessment of the evidence should trump Father‘s decision to deny visitation to Boyfriend. Further, even assuming the superior court correctly found, over Father‘s objection, that some visitation with Boyfriend was appropriate, the visitation awarded here was more than minimally intrusive. We vacate the visitation order and remand for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL BACKGROUND
¶3 Father and Mother had three children together. The eldest (born in 2007) has reached the age of majority and is no longer subject to family-court jurisdiction. The two younger children (born in 2017 and 2019) are the subject of the visitation order on appeal.
¶4 In 2023, Father and Mother divorced, with the parenting time of their three children split equally between them. Before or during the divorce proceedings, both parents began relationships with other individuals. Father later remarried, and Mother was in a three-year relationship with Boyfriend. Boyfriend and Mother lived together in Boyfriend‘s home, and Mother‘s parenting time occurred there. During Mother‘s parenting time, Boyfriend would care for the children, including taking them to school and doctor‘s appointments, helping with the morning and bedtime routines, attending their school events, and helping with their homework. The children called Boyfriend‘s parents “Nanny” and “Papa,” and Boyfriend‘s niece and nephew were the younger children‘s best friends. All three of Father‘s children saw Boyfriend as a father figure.
¶5 In June 2024, Mother committed suicide outside Boyfriend‘s home. All three children were inside the house at the time, but the younger two children were not exposed to the suicide scene. The next day, Boyfriend, Father, and the children‘s stepmother told the children that Mother had died. Father took the two younger children to his home, but the eldest child remained with Boyfriend.
¶6 Ten days after Mother‘s death, Boyfriend petitioned for emergency parenting time in loco parentis1 for the two younger
¶7 Three weeks later, the court reduced Boyfriend‘s emergency parenting time to the first and third weekend of each month from Thursday evening to Sunday evening. Later, the court held a trial on the visitation issue. The eldest child and Boyfriend testified about the children‘s relationship and bond with Boyfriend. Meanwhile, Father and the children‘s counselor expressed their concerns about Boyfriend‘s visitation, noting the children were returning to where Mother died, the disruption to the children‘s schedule, and the potential effect on the children‘s grieving.
¶8 The court found maintaining a relationship with Boyfriend was in the children‘s best interests because of their “significant and ongoing bond” with him. It continued Boyfriend‘s two monthly weekends of visitation, which would include holidays and birthdays if they coincided1
with the visitation. It also permitted Boyfriend to travel with the children out-of-state without Father‘s permission. Father appealed, and we have jurisdiction under
DISCUSSION
¶9 Father claims two errors in the court‘s visitation order. First, he argues that, as a fit parent, the court failed to afford “special weight” to his determination about his children‘s best interests. Next, he argues the court failed to make Boyfriend‘s visitation schedule “minimally intrusive” on Father‘s right to parent his children.
¶10 We will not disturb a third-party visitation award absent an abuse of discretion in assessing the evidence. In re Marriage of Friedman & Roels, 244 Ariz. 111, 120, ¶ 36 (2018). We review the evidence in the most favorable light to support the superior court‘s ruling. See id. at ¶ 41. “We review issues of statutory interpretation and constitutional law de novo.” Douros v. Morse, 258 Ariz. 546, 550, ¶ 13 (App. 2024).
A. A Court Is Limited When Awarding Third-Party Visitation.
¶11 “Prior to the enactment of [the] visitation statutes, [third parties] had no legal rights to visitation . . . .” Sands v. Sands, 157 Ariz. 322, 323 (App. 1988). Under the current statute, an individual other than a child‘s “legal parent” can petition the court for legal decision-making, placement, or visitation with the child.
¶12 In McGovern, we distilled two “constitutionally based principles” from Troxel that must guide a court‘s visitation analysis. 201 Ariz. at 177, ¶ 17; see also Friedman, 244 Ariz. at 116, ¶ 16 (Our supreme court recognized that McGovern correctly stated the constitutional principles.). First, “court[s] should recognize and apply a [rebuttable] presumption that a fit parent acts in his or her child‘s best interest in . . . [making] decisions concerning [] visitation.” McGovern, 201 Ariz. at 177, ¶ 17. Second, courts must afford “‘some special weight’ to a fit parent‘s determination of whether visitation is in the child‘s best interest” and “‘significant weight’ to a parent‘s voluntary agreement to some visitation, albeit not as much visitation as the [non-parent] desires.” Id. at 177-78, ¶ 18 (quoting Troxel, 530 U.S. at 70-72); see also
¶13 Parental fitness is a crucial aspect of any third-party visitation case, given the presumption that a fit parent acts in his or her child‘s best interests. Troxel, 530 U.S. at 68. “[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent‘s children.” Id. at 68-69, aff‘g In re Custody of Smith, 969 P.2d 21, 31 (Wash. 1988) (The court held that “[p]arents have a right to limit visitation of their children with third persons,” and that between parents and judges, “the parents should be the ones to choose whether to expose their children to certain people or ideas.“). And a parent is presumed to be fit unless there has been an adjudication of unfitness. See Friedman, 244 Ariz. at 119, ¶ 33.
¶14 In sum, to grant third-party visitation, a court must first find that visitation is in the best interests of the child and that one of several circumstances has occurred, including that one of the child‘s legal parents is deceased.
B. The Court Failed to Explain Why Father‘s Determination Was Not in the Children‘s Best Interests.
¶15 As noted in McGovern, the Court in Troxel did not establish what level of “special weight” must be afforded, instead leaving the issue “for development on a case-by-case basis.” McGovern, 201 Ariz. at 178, ¶ 18 (quotation omitted); see Troxel, 530 U.S. at 73 (The Court declined to rule on the scope of the parental due process right in the visitation context because “state-court adjudication in this context occurs on a case-by-case basis.“). Until this point, Arizona courts have not defined what level of “special weight” a parent‘s determination is entitled to. But the term “special weight,” as used in
¶16 In Douros, the concurrence suggested that to afford this term its proper weight, that is, to give a fit parent‘s opinion special weight, the party requesting visitation must rebut the parent‘s determination of the child‘s best interests by clear and convincing evidence. 258 Ariz. at 553, ¶ 38 (Catlett, J., concurring); see also Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005) (The clear and convincing evidence standard requires “the thing to be proved is highly probable or reasonably certain.” (quotation omitted)). We agree.
¶17 The clear and convincing evidence standard is the same standard used elsewhere when impinging on a parent‘s fundamental right to the care, custody, and control of his or her child. See, e.g.,
¶18 Other states have applied a clear and convincing evidentiary standard for third-party visitation, either to rebut a fit parent‘s visitation determination or to establish entitlement to visitation, or both. See, e.g., Ailport v. Ailport, 507 P.3d 427, 442, ¶ 43 (Wyo. 2022) (both); In re C.A.G., 337 P.3d 751, 752, ¶ 12 (Mont. 2014) (rebut); Walker v. Blair, 382 S.W.3d 862, 873 (Ky. 2012) (same); Rich v. Thatcher, 132 Cal. Rptr. 3d 897, 901 (Cal. Ct. App. 2011) (same);
¶19 Not all states agree. Some use standards other than clear and convincing evidence for granting visitation, including, at times, the preponderance of the evidence standard. See, e.g., Koshko v. Haining, 921 A.2d 171, 192-93 (Md. Ct. App. 2007) (The Maryland standard requires a threshold showing of “either parental unfitness or exceptional circumstances indicating that the lack of grandparental visitation has a significant deleterious effect” on the children.); Blixt v. Blixt, 774 N.E.2d 1052, 1060 (Mass. 2002) (The Massachusetts court found proof by a preponderance of the evidence that failure to grant visitation would cause “significant harm by adversely affecting the child‘s health, safety, or welfare.“); Moriarty v. Bradt, 827 A.2d 204, 233 (N.J. 2003) (same);
¶20 We join those states applying the clear and convincing standard because third-party visitation impinges on a fit parent‘s fundamental right to the care, custody, and control of his or her child. See Borja, 254 Ariz. at 313, ¶ 8; see also
¶21 Turning now to this case, the court did not find, nor did Boyfriend allege, that Father was an unfit parent. As a result, Father‘s decision to refuse Boyfriend visitation was entitled to special weight. Boyfriend sought to rebut Father‘s determination by presenting evidence that visitation was in the children‘s best interests based on their close bonds with him and his family, his role in their lives, and the children‘s older sibling‘s decision to reside with him. Given the evidence, the court could have found that Father‘s
¶22 But the court erred by failing to explain why its analysis of the children‘s best interests trumped Father‘s determination, as a fit parent, to the contrary. Although the court found that Boyfriend acted in loco parentis and had a significant bond with the children, that does not, on its own, explain why Boyfriend‘s position, adopted by the court, trumped Father‘s determination. See Egan v. Fridlund-Horne, 221 Ariz. 229, 236, ¶¶ 24-25 (App. 2009) (The court rejected the argument that a non-parent‘s “significant relationships” with the child placed her in a different legal position from other non-parents.). Without such an explanation, we cannot say that the court afforded Father‘s opinion special weight.2 As a result, we vacate the superior court‘s order and remand for the court to make the additional findings as necessary to afford Father‘s opinion special weight.
C. The Court‘s Visitation Schedule Excessively Burdened Father‘s Parental Rights.
¶23 Although we vacate the visitation order, we analyze the court‘s visitation schedule to provide guidance on remand and to avoid further litigation on the issues raised. See Buckholtz v. Buckholtz, 246 Ariz. 126, 131, ¶ 17 (App. 2019) (An appellate court may address issues likely to recur on remand.). Whether a third-party visitation schedule is excessive is a “case-by-case determination,” Aldridge v. Martin, 667 S.W.3d 612, 616 (Mo. Ct. App. 2023) (quotation omitted), which we review under an abuse of discretion and substantial evidence standard, Graville v. Dodge, 195 Ariz. 119, 128, ¶ 38 (App. 1999). While creating a minimally intrusive visitation schedule will always be fact-dependent, our cases and those from other states, which analyze the constitutional requirements, help explain the factors to consider.
1. A Visitation Order Is Not a Parenting Order.
¶24 Parenting time and visitation are distinct rights that our legislature has defined and established. “Parenting time” means the time that a parent has access to a child and is “responsible for providing the child with food, clothing and shelter and may make routine decisions concerning the child‘s care.”
¶25 “Visitation,” on the other hand, means only “a schedule of time that occurs with a child by someone other than a legal parent.”
¶26 The right to third-party visitation arises only from statute. See Sands, 157 Ariz. at 323. But the right to custody and control of a child is “perhaps the oldest of the fundamental liberty interests recognized.” Troxel, 530 U.S. at 65; see also
2. There Are Factors a Court Should Consider in Crafting an Appropriate Visitation Order.
¶27 If a court finds that some visitation time is appropriate, the following, infra ¶¶ 28-32, are factors a court should consider in crafting a minimally intrusive visitation order. Because a minimally intrusive visitation order is based on the facts presented, the listed factors are not exhaustive but guidelines to consider.
¶28 The amount of court-ordered visitation must be minimally intrusive. When a parent voluntarily grants some third-party visitation, a court should begin its analysis by determining whether the visitation granted by the parent is sufficient. See Douros, 258 Ariz. at 555, ¶ 45 (Catlett, J., concurring) (“Where a parent has voluntarily agreed to some visitation, the court should give that decision ‘significant weight,’ even when the amount is less than the third-party desires.“); T.W., 393 S.W.3d at 149; see also McGovern, 201 Ariz. at 179, ¶ 24 (“[A] parent‘s willingness to allow some visitation is but one factor to consider under [
¶29 Although a visitation schedule need not include flexibility, see Borja, 254 Ariz. at 315, ¶ 20, any discretion and flexibility in scheduling should be granted to the parent, not the third party, id. at 316, ¶ 24; see Graville, 195 Ariz. at 128, ¶ 39 (Flexibility for the parents in the visitation schedule made it minimally intrusive.). To grant discretion to the third party (without a clear, reasoned basis to do so) increases the burden on the parent‘s rights.
¶30 A visitation schedule should, at most, minimally interfere with activities in the child‘s life that are part of their growth and upbringing.
¶31 Visitation must also consider the importance of time with a parent around holidays and birthdays. A court-ordered visitation schedule leading to regular visitation on holidays or birthdays is likely an excessive burden on parental rights. Borja, 254 Ariz. at 315, ¶¶ 18-19; see also In re C.D.G.D., 800 N.W.2d at 659-60 (A visitation order was not in the best interests of the child, including when grandmother would have several holidays as visitation.). But visitation that incidentally coincides with holidays, or visitation limited to one specific annual holiday, may be appropriate in some cases.
¶32 Finally, video or phone calls can be an appropriate and effective means of visitation when used carefully, despite our courts having previously considered some implementations excessively burdensome. See Borja, 254 Ariz. at 316, ¶ 27; Graville, 195 Ariz. at 128, ¶ 42. Video or phone calls may ameliorate intrusion into the parent‘s and child‘s lives, especially when the third party is geographically remote from the child. See Dodd v. Burleson, 932 So. 2d 912, 922, n.1 (Ala. Civ. App. 2005). Video or phone calls can alleviate other friction associated with visitation, such as added travel time and time away from parents. See Clay v. Clay, 552 S.W.3d 692, 698 (Mo. Ct. App. 2018) (Monthly video calls were minimally intrusive because they could take place at the parent‘s home with no limitation on the parent‘s presence.). But even video or phone calls must be ordered with caution. Requiring affirmative action by parents to facilitate such calls may infringe on a parent‘s rights. Borja, 254 Ariz. at 316, ¶ 27; Graville, 195 Ariz. at 128, ¶ 42. It is appropriate for the visitor to have a minimal ability to reach out, with the parent or child having the discretion to decline such calls, and for the parent or child to have the freedom to establish and implement further contact. See Bazen v. Bazen, 837 S.E.2d 23, 35 (S.C. 2019).
3. The Visitation Order Here Was Not Minimally Intrusive.
¶33 The court awarded Boyfriend two weekends a month, for three days each weekend, as well as any holidays or birthdays that may fall during this schedule. It noted that visitation would not interrupt Thanksgiving or Christmas, but it would affect some upcoming Fourth of July celebrations and birthdays. The court also allowed Boyfriend to travel out-of-state with the children during his visitation without Father‘s consent.
¶34 The schedule fails at the first hurdle because the visitation order approximates a parenting time order for a fit parent. See Ertl v. Ertl, 252 Ariz. 308, 311, 315-16, ¶¶ 5, 27 (App. 2021) (affirming parenting time for every other weekend). The visitation schedule is, therefore, more than minimally intrusive. Accord T.W., 393 S.W.3d at 147 (Alternating weekends for two-and-a-half days, amounting to roughly twenty percent of the year, was an excessive burden on the mother‘s right to parent.); Swartz, 720 N.E.2d at 1222 (Grandparent visitation for alternating weekends was not in the child‘s best interests.). While we can envision a scenario in which a court may temporarily award substantial visitation to a non-parent to facilitate a smooth transition for the child into the exclusive care of the fit legal parent, the court did not do so here and did not explain why even a temporary award would be warranted over the fit parent‘s objection.
¶35 Likewise, allowing Boyfriend to take the children out-of-state without Father‘s consent significantly impinges on Father‘s legal decision-making rights. See
¶36 In making these observations, we are mindful that Boyfriend has acted in a parental capacity to the children, and they appear to want his support and care. But Father is a fit parent. Court-ordered visitation is not a parenting time plan, see
¶37 The court erred by creating a visitation schedule that unduly interfered with Father‘s parental rights. On remand, if the court finds visitation over Father‘s objection to still be in the children‘s best interests, it should create a visitation schedule using the principles set forth above.
ATTORNEY‘S FEES AND COSTS ON APPEAL
¶38 Father requests his attorney‘s fees and costs on appeal under
CONCLUSION
¶39 We vacate the superior court‘s visitation order and remand for further proceedings consistent with this opinion. Given this ruling, we vacate the superior court‘s order denying Father‘s request for attorney‘s fees. We do so because we are vacating the order about visitation, and we do not reach Father‘s argument that the superior court substantively erred by denying his attorney‘s fees request. The superior court may reconsider the issue on remand.
MATTHEW J. MARTIN Clerk of the Court
FILED: JR