Arizona Court of Appeals
Rosfeld v. Painter
Rosfeld v. Painter was an published memorandum decision where the Arizona Court of Appeals affirmed the family court’s decision to deny an in loco parentis petition seeking third party rights and an alternative request for third party visitation.
The parties were in a romantic relationship between March 2012 and April 2015. When their relationship ended, Painter began a relationship with another man and became pregnant. Before the child was born, Painter moved back in with Rosfeld.
Rosfeld, who was the the child’s biological father, cared for the child during the day while Painter worked, took the child to doctor’s appointments, and functioned as the child’s father figure. Eventually the child referred to Rosfeld as “Dad.” Even after Painter and the child moved out and into their own residence, Rosfeld continued to care for the child when Painter worked.
In 2018, Rosfeld found methamphetamine in Painter’s apartment. He filed an in loco parentis third party petition to establish legal decision-making and primary physical custody of the child. He also filed an emergency motion for temporary custody of the child.
The family court denied the emergency motion and set the case for trial. It ordered Painter to submit to random drug testing and to continue substance abuse counseling through TERROS. Painter eventually discontinued Rosfeld’s contact with the child and before trial, the child’s biological father reentered the picture and began regular visitation with the child.
In his pretrial statement, Rosfeld alternatively requested third party visitation if his petition for third party rights was denied. He hired an expert who testified that he was strongly bonded with the child and opined that third party visitation was in the child’s best interest. The expert also expressed doubt whether Painter would remain sober.
Painter had a witness testify about a verbal altercation between Rosfeld and Painter where Rosfeld became angry and repeatedly struck a wall. Painter testified that this was consistent with Rosfeld’s history of anger issues related to post-traumatic stress disorder and opposed third party visitation.
During the trial, Rosfeld abandoned his request for third party rights and sought only third party visitation. When the family court denied his request, he filed this appeal.
Rosfeld argued that the family court abused its discretion when it denied his request for third party visitation without making specific findings on the record about each of the factors enumerated under A.R.S. § 25-409(E).
The Court of Appeals rejected this argument and explained that the family court is not required to make specific findings in third party visitation cases. It contrasted third party visitation cases to cases involving parenting time and/or legal decision-making where family courts are required to make specific findings pursuant to A.R.S. § 25-403(B).
Sufficiency of Evidence
Rosfeld also argued that the family court failed to consider evidence of Painter’s substance abuse, text messages concerning self-harm, and his expert’s opinion that the child would suffer if his contact with Rosfeld ended.
The Court of Appeals found that the family court’s ruling noted Painter’s substance abuse and the testimony from Rosfeld’s expert witness. It further explained that competent evidence existed to support the denial of Rosfeld’s request. Specifically, the family court heard testimony about Rosfeld’s anger issues and how third party visitation might confuse the child now that the biological father reentered the child’s life.