In this special action, the trial court entered temporary child custody orders granting grandparents sole legal decision-making and parenting time of the mother’s five minor children following ex-parte petition and hearing. Mother’s fitness as a parent was challenged and the trial court did not err in granting temporary third-party custody to the grandparents.
The mother of six children was treated for breast cancer in 2013. She was widowed in 2015 and had considerable assets. Five of her children were minors at the time of appeal.
In 2016, she met a California man (Mr. LaJoie) through an online dating site. In September of that year, LaJoie came to Arizona to personally meet the mother, her children, and the grandparents who were members of a Christian church. Conflict over religious beliefs arose immediately between grandparents and LaJoie.
That October, the mother took three her three daughters to visit with LaJoie for a week. LaJoie and his teenage son traveled back to Arizona with the mother and moved in with her and her six children.
Referring to themselves as married in the “eyes of God,” new religious practices were implemented in the home. These included hosting a “home church” with rules “prohibiting the family from celebrating holidays or birthdays and requiring the family to end relationships with other family members and friends.”
Soon after, 20 or more of mother’s friends and family (including the grandparents and her three sons) held an intervention regarding the mother’s new religious practices, called her “demon-possessed,” and told her she was vulnerable and brainwashed by LaJoie. The mother told her sons that if they did not approve, then they could go live with their grandparents. The boys moved out the next day. LaJoie obstructed direct communications between the mother and her sons. The three daughters remained in the mother’s household and had limited visits with grandparents.
Grandparents Petition for Visitation
In January 2017, the grandparents petitioned for visitation with their granddaughters under ARS § 25-409(C). In February, one of the daughters went to school with a mark under her eye from “wrestling” with LaJoie’s friend, Mr. Ogden. Fearing sexual abuse, police investigated and interviewed LaJoie but closed the case as a non-crime.
That February, the mother was also diagnosed with terminal breast cancer. She and LaJoie legally married and traveled to Mexico for medical treatment. She left her daughters with Lajoie’s “son, a nanny, and family friends.” While they were in Mexico, the grandparents amended their visitation petition to seek temporary sole legal decision-making and sole parenting time. The grandparents also filed an ex-parte motion for emergency temporary custody. The eldest son’s affidavit put his mother’s mental stability into question. He stated his sister told him Ogden had “inappropriately touched her” and that she and her sister wanted to live with their grandparents.
The trial court granted the grandparent’s ex-parte emergency petition for sole custody. At the hearing later, the mother denied any sexual abuse and denied being part of a religious cult.
A long-time close friend of the mother testified for the grandparents, stating the mother had changed since her initial cancer diagnosis in 2013 and was “no longer of sound mind.” Mother’s oldest son testified as to how well he and his siblings were doing living with the grandparents and that none of them wanted to live with their mother. That he could never speak to his mother outside LaJoie’s presence. All the children said they were “unhappy and anxious” living with their mother and did not want to return so long as LaJoie was there.
After considering best interest factors under ARS § 25-403(A), the trial court affirmed its ex-parte temporary orders. Grandparent custody was in the children’s best interests. Mother was granted supervised parenting so long as LaJoie and Odgen had no contact with the children. Mother’s petition for review was granted.
Mother Appeals Third-Party Custody Orders
The first issue on appeal was whether the trial court had subject matter jurisdiction to enter temporary custody orders to grandparents. The mother argued the trial court failed to make specific fact findings that the grandparents stood in loco parentis to the children. That there were no specific findings how her care would be detrimental to the children under ARS § 25-409(A). And that the trial court applied the wrong standard (“best interests” instead of “significantly detrimental”).
The Court of Appeals denied the mother’s request for relief and outlined the process for awarding third party temporary custody under Arizona law.
First, the Superior Court of Maricopa County had jurisdiction as the child’s county of residence. ARS § 25-402(B). Second, grandparents’ amended petition with affidavit sufficiently established their standing in loco parentis to the children. That is, the children treated them as parents and the grandparents “formed a meaningful parental relationship” with the children for a “substantial period.” ARS § 25-401(1).
Third, the petition for third-party custody was supported by affidavit with detailed facts and specific claims regarding the mother’s fitness as a parent. ARS § 25-409(D). Fourth, the trial court examined the petition on the merits, imposing a rebuttable statutory presumption that it’s in the child’s best interests to award legal decision-making to a legal parent. ARS § 25-409(B). The burden of overcoming the presumption is by clear and convincing evidence.
Fifth, the trial court considered the best interests factors enumerated in ARS § 25-403(A) before making a determination. “This determination does not allow the family court to enter orders that it considers to be in the child’s best interests, but rather to use the child’s best interests to determine who should make decisions for the child.” Specific findings on the record are required for final custody orders, but not for temporary custody orders. ARS § 25-403(B).
The trial court correctly applied the best interests standard in entering temporary custody orders. A threshold showing that removing the children from their mother’s custody as “significantly detrimental” is only required in determining whether to allow grandparents’ petition to proceed to consideration on the merits or to summarily dismiss it. Grandparents then had the burden of rebutting the presumption by clear and convincing evidence. The trial court determined, and the record so supports, that the grandparents could overcome the presumption at trial.
The trial court “gave great weight to the children’s interviews, during which each child stated that LaJoie controlled Mother, their quality of life had declined since he appeared … and they believed that Mother was not of sound mind or capable of making good decisions.” Great weight was also given to LaJoie’s false representation that he was the girls’ father and allegations of Odgen’s abuse.
The grandparents will continue to bear the burden at trial on the merits of their petition. They will have to overcome the presumption that the mother’s custody “serves the child’s best interests because of the physical, psychological and emotional needs of the child to be reared by a legal parent.” The trial court’s order was supported by reasonable evidence. There was no error. Given the mother’s fitness as a parent had been challenged, deferring to her wishes would run against the best interests of the children. The Court of Appeals denied relief to the mother.
Chapman v. Hon. Hopkins/Pritchard, 1 CA-SA 17-0115 (Ariz. Ct. App. Oct. 12, 2017)
For precise language, read the court’s original opinion. Legal citations omitted.
To learn more about grandparents’ rights in Arizona family law, call Stewart Law Group and schedule an appointment with an experienced child custody attorney.