AFFECTED IN PART BY FRIEDMAN v. ROELS

In Goodman v. Forsen, the Arizona Court of Appeals defined the “special weight” family courts must give to a parent’s decision to oppose non-parent third party visitation under A.R.S. § 25-409.

Mother had one child whose father’s rights were severed. She began a relationship with Goodman and the parties and the child lived together for approximately five years. For an additional two years after the parties separated, Mother regularly allowed Goodman to spend time with the child. Eventually, when Mother entered into a new relationship, she discontinued the visitation.

Goodman filed a petition for third-party visitation under A.R.S. § 25-409(C), which states “a person other than a legal parent may petition the superior court for visitation with a child.” When considering whether to grant visitation to a third party, the family court “shall give special weight to the legal parents’ opinion of what serves the best interests” and consider all relevant factors further enumerated.

Mother opposed the visitation and reasoned that she and Goodman had a history of conflict and domestic violence; and that Goodman continued that conflict with Mother’s new spouse. Mother cited specific examples of conflict and also explained that she disagreed with Goodman’s method of disciplining the child. Despite Mother’s opposition, the family court ordered third-party visitation.

On her appeal, Mother argued that the family court misapplied the law when it considered the child’s best interests.

The Court of Appeals agreed and held that the family court failed to give special weight to Mother’s decision to deny visitation. The Court defined special weight to require “robust deference to fit parents’ opinions concerning their children’s best interests” and emphasized that third-party cases do not use the balancing test used in ordinary child custody cases.

It further held that a fit parent’s “determination is controlling unless a parental decision clearly and substantially impairs a child’s best interests. Even if arbitrary, the parents’ determination is the primary factor in the analysis, and the burden is on the person seeking visitation to demonstrate that denial of visitation would clearly and substantially impair the child’s interests.”

The family court’s decision was reversed and remanded for the family court to review the evidence according to this test.