Finck v. O'Toole

880 P.2d 624, 179 Ariz. 404, 173 Ariz. Adv. Rep. 77, 1994 Ariz. LEXIS 91

• Court: Arizona Supreme Court
• Decided: September 13, 1994
• Docket: CV-93-0362-PR
• Status: Published

Opinions

OPINION

MOELLER, Vice Chief Justice.

STATEMENT OF THE CASE

In an action for dissolution of marriage, the trial court awarded temporary visitation to step-grandparents standing in loco paren-tis to a child not common to the parties of the marriage. On special action, the court of appeals vacated the visitation award, holding that the trial court did not have jurisdiction to award visitation to the step-grandparents. Finck v. Superior Court, 177 Ariz. 417, 421, 868 P.2d 1000, 1004 (App.1993). We granted the minor child’s petition for review because it presents an issue of statewide importance in family law and there are conflicting court of appeals opinions on this issue. We have jurisdiction pursuant to Ariz. Const., art. 6 § 5(3) and Rule 23, Ariz.R.Civ.App.P.

FACTUAL AND PROCEDURAL BACKGROUND

Darla Finck filed a petition for dissolution of her marriage to Michael Finck. Darla and Michael were married in 1986. The child in question, Christopher Finck, was bom two months before the marriage. Both parties admit—and court-ordered blood tests established—that Michael is not the biological father of Christopher, although he thought himself to be such until Darla filed the dissolution and disclaimed her husbánd’s parentage.

When Darla filed for dissolution of the marriage, Christopher was living with his step-grandparents (Michael’s parents), Edward and Charlene Finck. At the time, Edward and Charlene were acting in loco par-entis to the child.

Michael is incarcerated and defaulted in the dissolution proceeding. Pursuant to a writ of habeas corpus, the trial court granted Darla’s request for custody of Christopher.¹ No one has ever challenged the trial court’s award of custody to Darla.

Based on a report and recommendation from Expedited Visitation Services, the trial court awarded Edward and Charlene Finck temporary visitation. Darla objected to the temporary visitation award, arguing then, as she does now, that the trial court lacked jurisdiction to award visitation to the Fincks. Court appointed counsel for the child responded that under Bryan v. Bryan, 132 Ariz. 353, 645 P.2d 1267 (App.1982) the court had jurisdiction. In Bryan, Division Two of the Court of Appeals held that a trial court in a dissolution proceeding can award visitation to a stepparent standing in loco parentis to a child. The trial court in this case relied on Bryan in making its contested visitation award.

In a special action by Darla, the court of appeals vacated the visitation award, holding that the trial court did not have jurisdiction to award visitation of a child not common to the parties of the dissolution proceeding. Finck 177 Ariz. at 421, 868 P.2d at 1004. The court of appeals disagreed with the analysis of Bryan and, instead, found the analyses of Olvera v. Superior Ct., 168 Ariz. 556, 815 P.2d 925 (App.1991), and Hughes v. Creighton, 165 Ariz. 265, 798 P.2d 403 (App.1990) controlling. In Olvera, the court of appeals held that “jurisdiction in domestic relations cases is limited, with one exception [not applicable here], to children common to the parties.” 168 Ariz. at 560, 815 P.2d at 929. In Hughes, the court of appeals held that, in a paternity action, a trial court does not have jurisdiction to award visitation to a person other than a biological or adoptive parent. 165 Ariz. at 268, 798 P.2d at 406. Because there are conflicting court of appeals opinions on this issue, we granted review.

ISSUE

Whether, in a dissolution proceeding, the superior court has statutory authority to award visitation to step-grandparents, even if they are standing in loco parentis to a child.

ANALYSIS

“Visitation rights, whether viewed as a limited form of custody or as a limitation upon the custody rights of another, may be granted only in a jurisdictionally sound custody proceeding.” Bryan, 132 Ariz. at 355, 645 P.2d at 1269. Thus, in order to award visitation, the trial court must, in the proper proceeding, have custody jurisdiction over the child.

Jurisdiction for determining issues of custody in domestic relations cases is governed by AR.S. § 25-331:

A Jurisdiction for child custody proceedings shall be governed by title 8, chapter 4, article 1.

B. A child custody proceeding is commenced in the superior court:

1. By a parent, by filing a petition for either of the following:

(a) Dissolution or legal separation.

(b) Custody of the child in the county in which the child is permanently resident or found.

2. By a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.

The issue here is not whether the jurisdictional requirements of title 8, chapter 4, article 1 have been met, but rather whether the trial court could properly exercise custody jurisdiction over Christopher in this marital dissolution proceeding under AR.S. § 25-331(B). We hold that it may not.

We agree with the Olvera court that, with one exception, AR.S. § 25-33KB) does not give the trial court authority to determine issues of custody for children not common to the parties of the marriage. The exception is contained in AR.S. § 25-331(B)(2) and applies when a non-parent files a petition for custody and the child is not in physical custody of one of his parents. Olvera, 168 Ariz. at 560, 815 P.2d at 929; cf. Bryan, 132 Ariz. at 355, 645 P.2d at 1269. This exception does not apply here. The Fincks did not file a petition for custody of Christopher pursuant to AR.S. § 25-331(B)(2) before Christopher was in Darla’s custody; rather, they sought (and still seek) a visitation award in a dissolution proceeding between Darla and Michael.

Nor have the Fincks sought custody of Christopher pursuant to the juvenile code, where, in the proper case, the trial court might have jurisdiction to make the necessary child custody determination. See A.R.S. § 8-403. Because no party properly “commenced” a child custody proceeding for Christopher, the trial court did not have authority to award the Fincks visitation with him.

We recognize that our reading of A.R.S. § 25-311 does not comport with the court of appeals’ analysis in Bryan. Bryan held that a trial court could award visitation to a stepparent standing in loco parentis to a child. In a literal reading of AR.S. § 25-311, the Bryan court held that, by filing a petition for dissolution, a parent commences a child custody proceeding, and that jurisdiction in such a proceeding is not limited to children common to the parties of the marriage. In so holding, the court found it significant that the legislature failed to use the limiting phrase “common to the parties of the marriage,” as it did elsewhere in the domestic relations statutes.

Like the court of appeals in this case, we reject Bryan’s reading of § 25-311, and for the same reasons. As the Bryan court readily conceded, its literal reading of AR.S. § 25-311 leads to absurd results. For instance, under its analysis, a trial court could award visitation to a stepparent standing in loco parentis to a child if the biological parent files the dissolution action, but not if the stepparent files the dissolution action. Moreover, without clear language expressing such an intent, we do not think the legislature intended to change the traditional rule that the authority of divorce courts was limited to children common to the parties of the marriage. Bryan, 132 Ariz. at 355, 645 P.2d at 1269; 27C C.J.S. Divorce § 611. We therefore agree with the court of appeals below and disapprove of Bryan to the extent that it holds otherwise.

Be that as it may, we also conclude that even if the trial court had authority over Christopher’s custody, it still could not properly award visitation to the Fincks, even if they, too, were properly before the court.² The legislature has seen fit to provide specific procedures for awarding visitation to noncustodial parents, A.R.S. § 25-337, to grandparents, A.R.S. § 25-337.01, and to great-grandparents, Id. The legislature has not seen fit to provide for visitation even with stepparents, let alone stepgrandparents. The legislative scheme, naming specific classes of parties to whom visitation may be granted, suggests to us that the legislature did not intend to confer authority to award visitation to unspecified third parties.

We also find it significant that the legislature has imposed substantial limitations even on the visitation rights statutorily granted to grandparents and great-grandparents. A.R.S. § 25-337.01. Notwithstanding what may be in a child’s best interest, these persons are only entitled to visitation under certain circumstances (e.g., the child’s parents must be divorced or a parent must be deceased for at least three months, A.R.S. § 25-337.01(A), visitation rights terminate when the child is placed for adoption, A.R.S. § 25-337.01(D)). Also important, in the statutorily authorized instances of grandparents and great-grandparents, the legislature has specified a procedure for the party seeking visitation to join or to initiate the appropriate court proceeding. This, of course, gives the trial court jurisdiction over the party seeking visitation and the correlative power to enforce its visitation orders. If we were to accept the Fincks’ argument, the trial court would have no such power.

The Kansas Supreme Court has recently spoken on the exact issue with which we are confronted. It held: “We decline the invitation to judicially create a right of unrelated third-party visitation. The Kansas legislature has granted visitation rights to grandparents and stepparents but has not spoken with regard to other unrelated third parties.” In re Hood, 252 Kan. 689, 847 P.2d 1300, 1303 (1993). So, too, has our legislature opted to limit visitation rights to specific parties; that is, noncustodial parents, grandparents, and great-grandparents.

Therefore, because the Fincks never properly initiated a child custody proceeding pursuant to A.R.S. § 25-331(B)(2) or the juvenile code and because no Arizona statute specifically grants standing to unrelated third parties to claim visitation rights, the trial court was without authority to award visitation to the Fincks.

Obviously, our opinion should not be read as denigrating the importance of continuing a child’s relationship with desirable third parties. Particularly in today’s society, it may well be in a child’s best interest to continue a relationship with different third parties such as stepparents and step-grandparents. However, absent statutory authority, the best interest of the child insofar as visitation is concerned must be determined by the designated custodial parent.³ In short, if potential court-ordered visitation rights are to be extended to unrelated third parties, we believe the extension is a legislative matter, as was and is the case with grandparental and great-grandparental visitation rights.

DISPOSITION

The trial court did not have authority to award visitation to the step-grandparents. We approve of the result and reasoning of the court of appeals to the extent it is consistent with this opinion. We disapprove of Bryan v. Bryan, 132 Ariz. 353, 645 P.2d 1267 (App.1982), to the extent it is inconsistent with this opinion. The trial court’s award of visitation to the Fincks is hereby vacated.

FELDMAN, C.J., and CORCORAN, J., concur.

1 . Darla was relegated to a habeas corpus proceeding for custody because the Fincks refused, repeatedly, to turn Christopher over to her.

2 . The Fincks have never voluntarily joined this action, nor has anyone joined them involuntarily. However, we dispose of this case on grounds other than non-joinder.

3 . The fitness of the custodial parent is not at issue in this case. If the Fincks, or, for that matter, any other person wish to challenge Darla’s fitness to serve as custodial parent, the proper procedure—as mentioned in the text above—is through the juvenile code, not through the domestic relations laws. See, e.g., A.R.S. §§ 8-201 to -601.