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.
No. CV-17-0225-PR
SUPREME COURT OF THE STATE OF ARIZONA
Filed June 8, 2018
242 Ariz. 463
Appeal from the Superior Court in Pima County, No. D20103718, AFFIRMED. Opinion of the Court of Appeals, Division Two, 242 Ariz. 463 (App. 2017), VACATED.
COUNSEL:
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.
OPINION
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.
¶1 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.”
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 Beforе 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
¶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
¶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 prеliminary 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[еd] 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
¶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
II.
¶11 We review the interpretation of statutes and constitutional issues de novo. Brenda D. v. Dep‘t of Child Safety, 243 Ariz. 437, 442 ¶ 15 (2018). “If a statute‘s language is subject to only оne 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
¶12
¶13 Because
¶14 Although
¶15 Although the meaning of “special weight” under Troxel is a matter of first impression before this Court, several post-Troxel court of appeals cases have addressed that issue. Before the legislature added the “special weight” provision to
¶17 Fifteen years later, after the legislature amended
III.
¶18 Mother contends that the court of appeals erred by failing to afford her the constitutional protection to which only she is entitled under Goodman‘s “robust deference” standard. Echoing the dissent below, Mother argues the family court lacked authority to award visitation to Grandparents absent a showing that her visitation opinion would cause substantial harm to the children‘s best interests. See Friedman, 242 Ariz. at 471–72 ¶¶ 31–33, 36 (Staring, P.J., dissenting); Goodman, 239 Ariz. at 113 ¶ 13.
¶19 We disagree. Neither Troxel nor Arizona‘s statutory visitation scheme supports Goodman‘s broad pronouncements that any “nonparent who seeks visitation carries a substantial burden to prove that the parent‘s decision [to bar visitation] is harmful,” and that “[t]he nonparent must prove that the child‘s best interests will be substantially harmed absent judicial intervention.” 239 Ariz. at 114 ¶ 14. Indeed, Troxel and McGovern expressly declined to require a showing of harm to rebut a parent‘s visitation opinion that is entitled to “special weight.” In addition, although Arizona law requires a showing of “significant[] detriment[] to the child” when a nonparent seеks legal decision-making authority or child placement,
¶20 We have no reason to believe that the legislature intended “special weight” for
¶21 Mother does not challenge the constitutionality of
language).
A.
¶22 Attempting to follow
¶23 Arizona‘s visitation statute provides the solution to the resulting stalemate: “The superior court may grant visitation rights . . . on a finding that the visitation is in the child‘s best interests.”
¶24 Mother argues on several grounds that the family court erred by giving Father‘s opinion any weight or not affording her opinion against any grandparent visitation “extra” special weight. We turn next to those arguments, none of which is persuasive.
B.
¶25 We first address Mother‘s reliance on the Parenting Plan to refute the family court‘s visitation order. Mother argues that the rights afforded a “legal parent” under
¶26 We are not persuaded. Nicaise is inapposite as it did not address visitation issues. And the statutes relating to legal decision-making and parenting plans do not override
¶27 Other provisions of
¶28 Even assuming a parenting plan could control visitation disputes, the record does not support Mother‘s position. When Mother and Father presented thе Parenting Plan to the family court for approval, Father, without objection from Mother, stated that the parties had “not made an agreement on . . . whether or not his parents can be present at his parenting time.” This brings the Parenting Plan, insofar as it relates to Grandparents’ visitation rights, squarely within the bounds of
C.
¶29 Mother next argues that the court of appeals erroneously concluded that Father is entitled to the same “special weight” under
¶30 We disagree. Mother‘s argument rests on the incorrect premise that Troxel‘s “special weight” is afforded to only a “fit custodial parent.” Although Troxel referred to the mother in that case as a “fit custodial parent,” 530 U.S. at 69, 72, that was a descriptive, not a normative, term. In other words, Troxel did not as a constitutional matter confine its “special weight” entitlement to custodial parents. As Mother concedes, ”Troxel is silent on the special weight to be given a parent who is noncustodial or who may not be found ‘fit.‘” In addition, “special weight” under
¶31 We also rejеct Mother‘s suggestion that only parents who are fit and have custody of their children are entitled to Troxel‘s “special weight.” To the contrary, it is well-established that a parent‘s rights “do[] not evaporate simply because they have not been model parents or have lost temporary custody of their child . . . . Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable
destruction of their family life.” Santosky v. Kramer, 455 U.S. 745, 753 (1982); accord In re D.I.S., 249 P.3d 775, 780–82 (Colo. 2011). Thus, even though Father‘s parenting time is subject to significant restrictions, that fact does not strip him of, or even limit, his fundamental right to “direct the upbringing . . . of [his] children.”
¶32 We also reject Mother‘s argument that Father‘s visitation opinion is not entitled to “special weight” because the family court did not expressly find him to be a “fit” parent and because “Father‘s strictly supervised contact with the children” establishes that “he is not ‘fit.‘” Because
¶33 Even if parental fitness were relevant here, we reject Mother‘s assertion that, although Father has not been adjudicated “unfit,” he is presumptively unfit because the family court did not expressly find him to be a fit parent. A parent is either fit or unfit — there is no middle ground — and when “[t]here has been no adjudication of the issue of . . . fitness,” a person “is presumed to be a fit [parent].” Ward v. Ward, 88 Ariz. 130, 139 (1960); cf. Santosky, 455 U.S. at 760 (“[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.“). We therefore reaffirm what we have long held: a parent is presumed to be “fit” until he or she has been adjudicated unfit.
D.
¶34 We hold that when, as here, two legal parents’ visitation opinions conflict, neither parent is entitled to a presumption in his or her favor and, although both parents’ visitation opinions are entitled to special weight, the family court‘s factually supported determination of whether visitation is in the child‘s best interests controls.
¶35 To the extent Mother argues that applying the best-interests standard here will impermissibly diminish her fundamental right to direct the upbringing of her children, we disagree. That assertion would apply
constitutional.
IV.
¶36 Because the decision to award visitation rests within the family court‘s discretion upon finding that visitation is in the child‘s best interests, we will not disturb the court‘s decision absent an abuse of discretion in making the best-interests finding. See Andro v. Andro, 97 Ariz. 302, 305 (1965) (noting that because trial court is in best position to determine best interests of child, its ruling will not be disturbed absent abuse of discretion). “An abuse of discrеtion exists when the record, viewed in the light most favorable to upholding the trial court‘s decision, is ‘devoid of competent evidence to support’ the decision.” Little v. Little, 193 Ariz. 518, 520 ¶ 5 (1999) (quoting Fought v. Fought, 94 Ariz. 187, 188 (1963)).
¶37 Section
- The historical relationship, if any, between the child and the person seeking visitation.
- The motivation of the requesting party seeking visitation.
- The motivation of the person objecting to visitation.
- The quantity of visitation time requested and the potential adverse impact that visitation will have on the child‘s customary activities.
- If one or both of the child‘s parents are decеased, the benefit in maintaining an extended family relationship.
¶38 Although the family court expressly “consider[ed]” and made findings on “all relevant factors,” including those outlined in
¶39 Mother‘s arguments seriously mischaracterize the record. The family court implicitly, but understandably, questioned Mother‘s evidence that visitation with Grandparents negatively impacted the children‘s mental wellbeing. One of the therapists Mother called acknowledged that her testimony was based on “selected” visitation reports that Mother provided and that she had never met Grandparents or evaluated the children‘s reaction to them. The other therapist could not clearly explain the basis for her conclusions and inexplicably said that she would oppose visitation even if the visitation reports were “extremely positive.”
¶40 The family court similarly had reason to question Mother‘s own testimony. Although Mother viewed Grandparents’ visitation as harmful because M. “stopped being able to go to school” and R. “started having panic attacks” after visitation began, she later conceded that M. “had a lot of difficulty attending school . . . when the grandparents were not involved,” and that R. had trouble with anxiety before visitation began. Mother‘s anti-visitаtion opinion was also contradicted by her acknowledging in closing argument that her opposition to visitation was based upon “a false knowledge” of Grandparents and that “these are not the grandparents [to whom] you would deny visits.”
¶41 Viewed in the light most favorable to supporting the family court‘s ruling, the record
¶42 The record also contradicts Mother‘s suggestion that the children received only fleeting benefit from visitation with Grandparents. To the contrary, the record establishes that Grandparents fostered a loving, structured environment in which the children were better able to interact with Father — a relationship Mother concedes is important to the children‘s wellbeing. If anything, the evidence suggests that Grandparents facilitated the children‘s relationship with Father, which is undeniably more than a “fleeting” benefit.
¶43 Also meritless is Mother‘s assertion that the record does not support the family court‘s finding that the children have a significant and positive historical relationship with Grandparents. Indeed, despite the distance between Mother and
Father‘s marital residence in Tucson and Grandparents’ home in Avondale, Grandparents were present during or shortly after the children‘s births and attended the children‘s martial arts and ballet lessons, baseball games, birthdays, and other special occasions. Grandparents’ visits were frequent enough that they shared a special saying with the children — “go up and make a hook” — describing the route Grandparents’ vehicle took to enter the Tucson-area hotel where Grandparents stayed during their visits. The fact that both M. and R. recalled this saying during their visitation with Grandparents further buttresses the family court‘s finding that before Mother and Father‘s separation and divorce, the children had a significant, positive relationship with Grandparents.
¶44 In sum, far from being devoid of credible evidence to support the family court‘s best-intеrests finding as Mother asserts, the record plainly supports the court‘s finding that visitation is in the children‘s best interests. Accordingly, the family court did not abuse its discretion in awarding Grandparents visitation.
V.
¶45 For the reasons set forth above, we affirm the family court‘s visitation order and vacate the court of appeals’ opinion. In our discretion, we deny both sides’ requests for an award of attorney fees under