By:  J. Kyle Scoresby

A.R.S. § 25-415 allows a person other than a legal parent to seek custody of a child under certain circumstances. Winning custody of a child for the non-parent, however, is a tall order.

The governing statute, A.R.S. § 25-415, sets up a two-part process. Subsection A of A.R.S. § 25-415 addresses the facts that must be alleged in the petition for non-parent custody and the elements the court must find in order for the petition to survive summary dismissal and to have an evidentiary hearing set. If the petition survives the trial court’s initial review under A.R.S. § 25-415(A), an evidentiary hearing will be set. At the evidentiary hearing, a “clear and convincing evidence” standard applies.

A.R.S. § 25-415(A) provides that a petition for custody filed by a person other than a legal parent shall be summarily denied unless the court “finds that the petitioner by the pleadings established that all of the following are true:

  1. The person filing the petition stands in loco parentis to the child.
  2. 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.
  3. 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.
  4. One of the following applies:
    • One of the legal parents is deceased.
    • The child’s legal parents are not married to each other at the time the petition is filed.
    • There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.”

A non-parent custody petition is not a pleading to be taken lightly. The attorney must include detailed facts supporting each element that the statue requires be addressed in the verified petition. Subsections 3 and 4 of A.R.S. § 25-415(A) are objective in nature and do not require the trial judge to exercise particular discretion. If the requirements of A.R.S. § 25-415(A)(3) and (4) are not met, the petition cannot be filed in good faith.

The petition requirements set forth in A.R.S. § 25-415(A)(1) and (2), however, require the trial court to make a judgment call. If sufficient detailed facts are not alleged in the petition to allow the court to find that the requirements of A.R.S. § 25-415(A)(1) and (2) have been met, the trial court will summarily deny the petition.

As to A.R.S. § 25-415(A)(1), the petition must establish that the person filing the petition stands in loco parentis to the child. A.R.S. § 25-415(G)(1) defines an in loco parentis person as one “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.” Although in loco parentis status may plausibly exist for a person who has not had the subject child living with him or her, such a situation is difficult to imagine. In loco parentis standing generally arises when the subject child has resided with the in loco parentis person (the petitioner) for a substantial period of time and when the petitioner has cared for the child as she would her own child.

If the petitioner is able to allege sufficient detailed facts in the petition to establish his in loco parentis status, he must then allege sufficient detailed facts in the petition under A.R.S. § 25-415(A)(2) to establish 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.” It is not sufficient for the petitioner to merely allege that he would be a somewhat better custodian/caregiver than the living legal parent or parents who wish to retain or obtain custody. The petition should allege detailed facts establishing that, were the child to remain or be placed with one of the living legal parents, there would be significant detriment to the child’s physical, mental, moral or emotional health. Some facts which may be sufficient to pass muster in the petition would be a history of domestic violence or substance abuse on the part of the living legal parents who wish to retain or obtain custody.

Once a petition for non-parent custody survives initial scrutiny under A.R.S. § 25-415(A) and an evidentiary hearing is set, the legal standard at the evidentiary hearing is set forth in A.R.S. § 25-415(B). “[T]here is a rebuttable presumption that it is in the child’s best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child’s legal parent.” To win the non-parent custody case at trial, the in loco parentis petitioner must rebut the presumption in favor of the legal parent by showing “by clear and convincing evidence that awarding custody to a legal parent is not in the child’s best interest.” A.R.S. § 25-415(B). What constitutes “clear and convincing evidence” is left to the discretion of the trial judge. It is certain, however, that trial judges will not treat a child custody case between a non-parent and a legal parent the same as a court would treat a child custody dispute between two legal parents.

A non-parent custody case is not a simple balancing act. The law and public policy favor the rights of legal parents to raise their children. In order to overcome the presumption in favor of the legal parent, the in loco parentis petitioner must show that the scales weigh heavily in favor of placing the child with the in loco parentis petitioner. An attorney for a legal parent opposing a non-parent’s custody action under A.R.S. § 25-415 may argue that the “significantly detrimental” standard applies not only to the court’s initial review of the petition for non-parent custody but that the court should also only place the child with the in loco parentis petitioner if the court finds at the evidentiary hearing by clear and convincing evidence that it would be significantly detrimental for the child to remain or be placed with the living legal parent who wishes to retain or obtain custody. This standard of review would be even more difficult than that set forth in A.R.S. § 25-415(B).

It appears from reviewing the statute and at least one Arizona case, however, that the “significantly detrimental” element only applies as the trial court is reviewing the initial petition to determine whether to summarily deny it or to set the matter for an evidentiary hearing. Once the trial court determines that the petition passes muster under A.R.S. § 25-415(A), the standard of review at trial under A.R.S. § 25-415(B) seems NOT to require a finding of “significant detriment.” The in loco parentis petitioner must show by clear and convincing evidence that awarding custody to a legal parent is not in the child’s best interest. A.R.S. § 25-415(B) does NOT require the in loco parentis petitioner to show by clear and convincing evidence that it would be significantly detrimental to the child to award custody to a legal parent.

In In Re the Matter of Thomas, 49 P.3d 306, 376 Ariz.Adv.Rpt. 20 (2002), the Arizona Court of Appeals, Division 1, stated that the trial court may not award joint custody to a legal and non-legal parent. The Thomas Court found that A.R.S. § 25-415(B) “requires the court to make an either-or decision: either it is in the child’s best interest for a legal parent to have custody or it is not. The court cannot reasonably find that it is in the child’s best interest for a legal parent to have custody and that it is also in the child’s best interest for a non-legal parent to have custody. If the court finds that it is in the child’s best interest to award custody to a non-legal parent, the court abuses its discretion in also awarding custody to a legal parent, for the court has necessarily found ‘by clear and convincing evidence that awarding custody to a legal parent is not in the child’s best interests.'” (Emphasis added). Id. Under Thomas, therefore, a trial court may not award joint legal custody in an in loco parentis case. The above-quoted text from Thomas further demonstrates that the standard to be applied by the trial court at the evidentiary hearing is “clear and convincing evidence” regarding the child’s best interest, not the “significantly detrimental” test applied when the trial court reviews the petition and determines whether to summarily deny the petition or to set the matter for an evidentiary hearing.

In a non-parent custody case under A.R.S. § 25-415, the trial court is still required to make findings under A.R.S. § 25-403(A) as to the child’s best interest. Downs v. Scheffler, 80 P.3d 775, 206 Ariz. 496 (Ariz.App.Div.1 12/04/2003). The trial court’s custody decision under A.R.S. § 25-415 is reviewed on appeal under an abuse of discretion standard. Cruse v. Bailey, 1 CA-CV 08-0520; memorandum decision (Ct. App. Div. 1, 5/5/2009). In Cruse, the trial court denied the maternal grandmother’s in loco parentis custody request against the father despite allegations that father sexually molested the child where the trial court found insufficient evidence to support those allegations. In Wilkin v. Kabourou, No. 2 CA-CV 2001-0058 (Ariz.App.Div.2 11/26/2003), the Court of Appeals affirmed an award of custody. The Court of Appeals found that the trial court’s decision was supported by evidence that the father had had very limited contact with the minor child from the time the child was 18 months old until the child was approximately 30 months old. Id.

In a case I recently handled for an in loco parentis grandmother, the grandmother was awarded custody where the remaining living legal parent, the natural father, had been absent from the child’s life for a significant period of time, had a consistent history of marijuana abuse including disregarding court orders to drug test, and where a psychologist/expert opined that it was in the child’s best interests to be placed with the grandmother. In another grandmother case, we were unsuccessful where it was determined that, although the mother (the living legal parent who wished to retain custody) had mild bi-polar disorder as determined by psychiatric evaluation, mother adequately controlled her condition by use of medication and was still able to appropriately care for the child.

If the in loco parentis petitioner does not qualify for custody of the subject child, such as when the living legal parent who wishes to retain or obtain custody is a fit parent, the in loco parentis petitioner may be awarded visitation rights under A.R.S. § 25-415(C). See Egan v. Fridland-Horne, CA-SA 08-0240 (Ct. App. Div. 1, 4/14/2009); Riepe v. Riepe, CA-CV 03-0184 (Ct. App. Div. 1, 5/25/2004).

In sum, an in loco parentis petitioner who wishes to obtain custody of a child will need to thoroughly and carefully craft the initial petition under A.R.S. § 25-415(A) to avoid summary dismissal. At the trial or evidentiary hearing, the petitioner must rebut the presumption in favor of the legal parent under A.R.S. § 25-415(B) by advancing clear and convincing evidence establishing that awarding custody to the legal parent is not in the child’s best interest and that it would be in the child’s best interest to award custody to the in loco parentis petitioner. Although in loco parentis custody cases are difficult for the petitioner to win, the facts and circumstances existing in some cases will support an award of custody to the in loco parentis petitioner. Where the facts do not support an award of custody, the in loco parentis petitioner may still qualify for visitation rights.
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© 2011 J. Kyle Scoresby, P.C. All rights reserved.