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The Statute and the Issues P27 In 1997 the legislature passed the ILP statute in order to allow persons "other than a legal parent" to qualify for custody and visitation rights with children to whom they had no biological or adoptive relationship.
Because the court misinterpreted § 25-415 by requiring Stepmother to prove that Cody’s relationship with her was equal to or superior to the relationship he shared with his legal parents, we reverse and remand with instructions for the court to assess the evidence presented in support of and in opposition to the petition using the correct interpretation of § 25-415. n2 Section 25-415(G)(1) defines one “in loco parentis” as “a person [***6] who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.” n2 Section 25-415(C) provides in full as follows: The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of § 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child’s best interests and that any of the following is true: 1. § 25-415(A)(2) (requiring finding, among other things, that it would be “significantly detrimental to the child to remain or be placed in the custody of either of the child’s living legal parents who wish to retain or obtain custody.”). Additionally, if we adopted the Dissent’s position, a party could never obtain in loco parentis visitation when both legal parents are living; a result that would contravene the plain language of § 25-415(C)(2), (3). P20 The legislative history of § 25-415 further supports a conclusion that in loco parentis status is not tied to the number of involved legal parents or gender. Consequently, he stated that the issue “cried out for legislative clarification.” Id. 1997) (“To discern the legislature’s intent, we may consider the effect and consequences of alternative construction.”). Conversely, the step-grandfather could have obtained in loco parentis visitation because the child did not know his biological father. 1997) [***20] (“We presume the framers of the statute did not intend an absurd result and our construction must avoid such a consequence.”); see also A. n5 The Dissent apparently attempts to avoid this result by stating that the step-grandparents in Finck had taken the place of both parents for a period of time before they were awarded visitation. In fact, neither the supreme court’s decision in Finck, nor this court’s prior decision in that case, reflects that the step-grandparents had “replaced” mother or step-father in the child’s life prior to the award of visitation. Any such restrictions must be imposed, if at all, by the legislature. § 25-415(C), Stepmother was not required to prove that she usurped the role that either Father or Mother served in Cody’s life. Custody by nonparent; presumption; grounds; definitions A.
C., By Philip (Jay) Mc Carthy, Jr., Attorneys for Petitioner-Appellant. Brennan Flagstaff, Attorney for Respondent-Appellee. For the reasons that follow, we hold that § 25-415(C) authorizes the court to award reasonable visitation under such circumstances if the factors set forth in that provision are otherwise satisfied. DISCUSSION P6 Stepmother first argues that the superior court incorrectly interpreted A. Section 25-415(C) authorizes the court to grant reasonable visitation rights to “a person who stands in loco parentis to a child” upon a finding, among others, that visitation is in the child’s best interests. § 1-211(B) (“Statutes shall be liberally construed to effect their objects and to promote justice.”). [***21] P23 In sum, the Dissent errs by both equating parents with persons who stand in loco parentis to a child, and by imposing number and gender restrictions on obtaining in loco parentis visitation that are not supported by the language or legislative history of § 25-415. BARKER, Judge[EDITOR’S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.] [**344contd] Appendix § 25-415.
n1 A “legal parent” is “a biological or adoptive parent whose parental rights have not been terminated.” A. She fed Cody, was involved in his classroom, and cared for him both before and after she married Father. Relying on dictionary definitions of “in loco parentis,” she asserts that § 25-415(G)(1) required Stepmother to show that she stood “in the place of” a natural parent in order to receive visitation rights. 468, 470 n.3, 671 P.2d 909, 911 n.3 (1983) (acknowledging that unless legislature clearly expresses intent to give term a special meaning, court gives words used in statutes their plain and ordinary meaning, which can be gleaned from dictionaries). Notice shall include a copy of the petition and any affidavits.
PRIOR HISTORY: Appeal from the Superior Court in Coconino County. Mother had parenting time every other weekend, one evening a week, and extended time over school vacations. Father and Cody moved in with Stepmother and her three sons in January 2000. Tragically, Father died in a traffic accident in [***3] November 2001. One of Stepmother’s sons and Cody attended the same school, and she transported them to and from school. We are not bound by the court’s conclusions of law “that combine both fact and law when there is an error as to the law.” Lee Dev. P8 Mother counters that the court correctly interpreted § 25-415(G)(1) to require Stepmother to show that her relationship with Cody was the same as or superior to his [**315] [*93] relationship with Mother and Father. Neither the definition of “in loco parentis” nor the criteria for obtaining visitation rights requires that the petitioning party be of a different gender than a legal parent. The legislature did not constrain the court’s discretion by imposing additional limitations [**318] [*96] relating to gender or the quality of the child’s relationship with his legal parents, and the Dissent errs by seeking to impose such constraints. [***19] P22 Finally, the fallacy of our dissenting colleague’s position is further revealed by an examination of the effects and consequences of his view of § 25-415(C). The petitioner shall provide notice as required by subsection e. P26 Because I write at some length, the following Table of Contents is provided.
8 of 22 DOCUMENTS JANETTE RAE SMITH RIEPE, Petitioner-Appellant, v. 1 CA-CV 03-0184 COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT B 208 Ariz. During this time, Mother also was involved with Cody and paid child support to Father. After holding an evidentiary hearing on Stepmother’s petition and [***4] reviewing memoranda from both parties, the superior court found that Stepmother had failed to carry her burden of proving that she stood in loco parentis to the child. P10 Section 25-415(G)(1) does not require a person seeking in loco parentis visitation to establish that he or she has a parental relationship with a child that replaces that child’s relationship with a legal parent. Thus, as Mother acknowledged in oral argument before this court, the superior court can grant in loco parentis visitation to a petitioning party even if the child maintains a meaningful parental relationship with his or her legal parents. Second, awarding in loco parentis visitation against a parent’s wishes does not eliminate that parent’s rights. The person filing the petition stands in loco parentis to the child. It would be significantly detrimental to the child to remain or be placed in the custody of either of the child’s living legal parents who wish to retain or obtain custody. A court of competent jurisdiction has not entered or approved an order concerning the child’s custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health. One of the following applies: (a) One of the legal parents is deceased. “In loco parentis” means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the [***25] child for a substantial period of time. “Legal parent” means a biological or adoptive parent whose parental rights have not been terminated. The majority misconstrues the in loco parentis statute (“ILP statute”) n6 by utilizing an alternative definition of “parent” that judicially unhinges the ties of number and gender that pertain to that term. S.”) section 25-415 (2000) is referred to throughout this dissent as the ILP statute.
All evidence shows that Stepmother was a very loving and involved person in Cody’s life during the time she was with Father. Because Mother and Father fulfilled the rights and obligations of parents to Cody before Father’s death, Mother contends that Stepmother could not have “stood in the place” of either parent. This court looks to commonly used definitions [***8] of statutory terms only when the legislature has not ascribed a particular meaning to such terms. Here, because the legislature has provided a definition of in loco parentis in § 25-415(G)(1), we must look no further than that definition when deciding what is required to establish in loco parentis status. Assuming that the remaining factors set forth in § 25-415(C) are satisfied, including a finding that visitation is in the child’s best interests, the court can order reasonable visitation. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true: [**345] 1. P25 My view of this matter is much closer to that of the trial judge’s than it is to that of my colleagues.
the person filing the petition stands in loco parentis to the child. Father had primary physical custody and mother [***33] had parenting time every other weekend, one evening a week, and extended time during school vacations. At the same time, however, mother was fully engaged as Cody’s mother.
Cody was five years old when his parents were divorced. Joint legal custody was awarded to mother and father. His parents were Brandy Jo Riepe ("mother") and David Alan Riepe ("father"). Stepmother was actively and appropriately involved in Cody’s life. The legislature required that the stepparent must also be in loco parentis.
In January 2000, father and Cody moved in with stepmother and her three children. In November 2001, tragically, father was killed in an automobile accident.
n11 Father developed a relationship with Janette Rae Smith ("stepmother").
[**314] [*92] P4 After Father died, Cody began living with Mother. Specifically, the court found as follows: [Stepmother] has shown that she was a caring and supportive step-parent and that Cody did bond to her. Similarly, the petitioning party need not show that his or her relationship with the child is superior to the child’s relationship with one or both legal parents. With these principles in mind, we turn to the superior court’s application of § 25-415(G)(1) in its ruling. (b) The child’s legal parents are not married to each other at the time the petition is filed. A person or agency that has physical custody of the child or that claims to have custody or visitation rights. Any other person or agency that has previously appeared in the action. A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child. For the reasons that follow, I respectfully dissent.