Downs v. Scheffler

• Decision Date: 04 December 2003
• Docket Number: No. 1 CA-CV 02-0562.,1 CA-CV 02-0562.
• Citation: 80 P.3d 775,206 Ariz. 496
• Parties: Robin Marie DOWNS, Respondent-Appellee, v. Mary Ann SCHEFFLER fka Mary Ann Manning, Third Party Petitioner-Appellant.
• Court: Arizona Court of Appeals

80 P.3d 775

206 Ariz. 496

Robin Marie DOWNS, Respondent-Appellee, v. Mary Ann SCHEFFLER fka Mary Ann Manning, Third Party Petitioner-Appellant.

No. -0562.

Court of Appeals of Arizona, Division 1, Department E.

December 4, 2003.

Robin Marie Downs (Thacker), Phoenix, Respondent-Appellee in Propria Persona.

Wilson-Clark, P.C. By Karen A. Schoenau, Phoenix, Attorneys for Third Party Petitioner-Appellant.

OPINION

SNOW, Judge.

¶ 1 Mary Ann Scheffler, the paternal grandmother of Kortnee M., an eleven-year-old child, appeals a trial court's order confirming Kortnee's mother, Robin Marie Downs, as the child's sole legal custodian. For the reasons stated below, we vacate the family court's decision and remand to allow the court to make the specific findings required by Arizona Revised Statutes ("A.R.S.") sections 25-403(A) and (J) (Supp. 2003), and to allow Scheffler to fully cross-examine the Conciliation Services evaluator as to all the reasons for her conclusion that it would be in Kortnee's best interests to be in Downs' custody. We also remand to allow the family court to consider Scheffler's request for grandparent visitation with Kortnee.

FACTS AND PROCEDURAL HISTORY

¶ 2 Kortnee was born in August 1991 to parents who never married. Both parents and Kortnee lived with Scheffler for a short time, but in December 1991 Downs and Kortnee left Scheffler's home. That same month, Kortnee's father petitioned the court for sole custody of Kortnee. Instead, Downs was awarded sole custody with Kortnee's father receiving supervised parenting time and Scheffler receiving grandparent visitation. In early 1992, Downs and Kortnee moved back with Scheffler. By the end of August 1992, Downs moved out of Scheffler's home and Scheffler took over Kortnee's care and support, although Downs still had sole legal custody. Downs resumed regular contact with Kortnee in 1999, but Kortnee remained in the physical custody of Scheffler, who continued to support Kortnee without receiving any support payments from either of Kortnee's parents.

¶ 3 In 2000, both parents consented to Scheffler's appointment as Kortnee's guardian. In February 2001, after Downs sought to move Kortnee into her new home, Scheffler petitioned the court to grant her legal custody pursuant to A.R.S. § 25-415 (2000), dealing with custody proceedings by persons other than the legal parents. After the parties participated in mediation, the court adopted the mediation agreement requiring that Kortnee spend every other week with Downs. Five months later, Downs sought to rescind the mediation agreement and the trial court subsequently held an evidentiary hearing on Scheffler's petition for custody.

¶ 4 At the evidentiary hearing, both Scheffler and Downs testified. In addition, Scheffler called Kortnee's therapist, Dr. Janet Davidson, who opined that it would be in Kortnee's best interests to be in the legal custody of Scheffler, with whom she had lived for many years. Scheffler also called Cathi Culek, a Conciliation Services evaluator. Culek had prepared a conciliation services assessment for the court, concluding that it was in Kortnee's best interests that Downs retain sole legal custody with Scheffler receiving visitation. During her testimony, Culek advised the court that she had formed her opinion based in part on information that she would only reveal in the judge's chambers, without Scheffler present, because she thought "it would seriously jeopardize [Kortnee's] mental, emotional and physical safety." Similarly, Culek's assessment report expressly stated that she was not setting forth all the reasons for her custody recommendation "in order to protect [the child]." Although the court admitted the report, it did not meet with Culek ex parte nor did it allow Scheffler's counsel to cross-examine Culek as to all the reasons for her report's conclusion.

¶ 5 After the evidentiary hearing, the family court concluded that it was in Kortnee's best interests to remain in Downs' sole legal custody. It also concluded that Scheffler did not overcome the statutory presumption in favor of parental custody, and that Scheffler did not establish that it would be significantly detrimental to Kortnee to remain in Downs' custody.¹ The family court granted Kortnee's father parenting time of one weekend per month and the first two weeks in July, to be supervised by Scheffler. Scheffler did not receive any separate visitation time. She filed a motion for a new trial, a motion to stay the custody order, and as an alternative, a request for grandparent visitation should the court affirm its custody decision. Downs did not respond to any of these motions. The trial court denied both motions and failed to address Scheffler's request for visitation. Scheffler timely appeals. We have jurisdiction pursuant to A.R.S. § 12-2101(C) (2003).

DISCUSSION

¶ 6 On appeal, Scheffler asserts that the trial court abused its discretion in: (1) failing to make specific factual findings underpinning its custody determination as required by A.R.S. § 25-403(A) and (J); (2) refusing to permit her to cross-examine Culek on all the reasons for Culek's conclusion that it would be in Kortnee's best interests to remain in the legal custody of Downs; and (3) failing to consider Scheffler's alternative request for visitation.²

A. The Trial Court Did Not Make Sufficient Factual Findings.

¶ 7 Arizona's public policy makes the best interests of the child the primary consideration in awarding child custody. Hays v. Gama, 205 Ariz. 99, 102, ¶ 18, 67 P.3d 695, 698 (2003) ("We have repeatedly stressed that the child's best interest is paramount in custody determinations."). Section 25-403(A) enumerates nine specific factors that the court must consider in making a determination concerning a child's best interests. See A.R.S. § 25-403(A) ("The court shall determine custody, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors including [the nine factors enumerated in the subsection].").³

¶ 8 Subsection 25-403(J) further requires the court to "make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child." A.R.S. § 25-403(J) (emphasis added). Accordingly, in addition to making specific findings on the record concerning the reasons why the decision is in the best interests of the child (which should include the statutory best interests factors), § 25-403(J) also requires the court to make specific findings on the record about any other factors relevant to its custody decision. Cf. McGovern v. McGovern, 201 Ariz. 172, 177, ¶ 15, 33 P.3d 506, 511 (App.2001) (when determining child's best interests under grandparent visitation statute, court is obliged to consider "all relevant factors," not merely those enumerated in the statute); Jackson v. Tangreen, 199 Ariz. 306, 309, ¶ 11, 18 P.3d 100, 103 (App.2000) (same).

¶ 9 We have previously held that a custody decision without the specific findings required by § 25-403 is deficient and, as a matter of law, constitutes an abuse of the family court's discretion. In re Marriage of Diezsi, 201 Ariz. 524, 526, ¶ 5, 38 P.3d 1189, 1191 (App.2002). In light of Diezsi, Scheffler contends that the family court, which made no factual findings supporting its custody determination, abused its discretion as a matter of law. Downs contends, however, that the court was not obligated to make specific findings in this case because § 25-403 applies only to custody contests between the child's legal parents. She argues that § 25-415, which controls custody contests when someone other than the legal parent is seeking custody, does not require the formal findings mandated by § 25-403.

¶ 10 We do not agree. Section 25-415 does contain additional statutory requirements when a person other than a legal parent seeks to obtain custody of a child. For example, § 25-415 provides for the summary dismissal of a custody petition brought by one other than a legal parent if the petitioner fails to preliminarily establish certain statutory prerequisites with factual specificity.⁴See A.R.S. § 25-415(A); Thomas v. Thomas, 203 Ariz. 34, 37, ¶ 16, 49 P.3d 306, 309 (App.2002) ("Subsection (A)(2) requires that a petition by a non-legal parent be summarily dismissed unless the pleadings establish [the statutorily required elements]."). Such a summary dismissal does not require the detailed factual findings, made on the record, that accompany a decision in which a custody award is made after consideration of the evidence.

¶ 11 Once the court decides the pleadings are sufficient and proceeds to examine the merits of the custody petition, however, § 25-415(B) imposes a statutory 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." A.R.S. § 25-415(B). To overcome this presumption, the petitioner "must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests." Id. Thus, to determine whether a petitioner has overcome the statutory presumption in favor of a custody award to a legal parent, the court is obliged to consider the best interests of the child.

¶ 12 While § 25-415 repeats neither the mandatory best interests factors of § 25-403(A) nor the requirement for specific factual findings on the record set forth in § 25-403(J), those subsections need not be repeated to be applicable. By its own terms, in determinations regarding the best interests of a child, subsection 25-403(A) obliges the court to consider at least the nine mandatory factors outlined in that section. While a few of the best interests factors in § 25-403 pertaining to parents may not be implicated in a case in which someone other than a legal parent seeks custody,...