In re Friedman

• Decision Date: 19 June 2017
• Docket Number: No. 2 CA-CV 2016-0029,2 CA-CV 2016-0029
• Citation: 397 P.3d 1063
• Parties: IN RE the MARRIAGE OF Lisa J. FRIEDMAN, Petitioner/Appellant, and David C. ROELS Jr., Respondent, Claudia Roels and David C. Roels Sr., Intervenors/Appellees.
• Court: Arizona Court of Appeals

397 P.3d 1063

IN RE the MARRIAGE OF Lisa J. FRIEDMAN, Petitioner/Appellant, and David C. ROELS Jr., Respondent, Claudia Roels and David C. Roels Sr., Intervenors/Appellees.

No. 2 CA-CV 2016-0029

Court of Appeals of Arizona, Division 2.

Filed June 19, 2017

Dawn Wyland, Tucson, Counsel for Petitioner/Appellant

Susan M. Schauf, PLLC, Tucson, By Susan M. Schauf, Counsel for Intervenors/Appellees

Judge Espinosa authored the opinion of the Court, in which Judge Miller concurred and Presiding Judge Staring dissented.

OPINION

ESPINOSA, Judge:

¶ 1 Lisa Friedman appeals the trial court's decision to grant visitation rights to the paternal grandparents of her two children. She contends the court failed to accord sufficient weight to the presumption that her decision to deny visitation was in the children's best interests, effectively shifting the burden of proof to require her to prove visitation was not in their best interests. For the reasons that follow, we affirm.

Factual and Procedural Background

¶ 2 We view the record in the light most favorable to upholding the trial court's decision. Johnson v. Johnson , 131 Ariz. 38, 44, 638 P.2d 705, 711 (1981). Lisa Friedman and David Roels Jr. married in 2001 and have two minor children: M., born in 2003, and R., born in 2005. The couple separated informally in March 2010, following an incident in which Roels "went into a rage" and was admitted to a psychiatric facility with suicidal ideation. Friedman petitioned for legal separation in September 2010, and for dissolution of the marriage in May 2011. She and Roels signed a consent decree of dissolution in July 2011.

¶ 3 Roels has had supervised parenting time since the separation. He had no legal decision making authority over the children until August 2015, when he and Friedman agreed that while Friedman would retain "final decision making authority," she would consult with Roels on non-emergency matters. The children received counseling beginning in June 2010 and participated in several family therapy sessions with Roels in 2012, 2013, and 2015. He had been abusive at times during the marriage, including yelling and losing his temper, and "kicking [M.] once" and "holding him and grabbing him once."

¶ 4 In April 2014, paternal grandparents David Roels Sr. and Claudia Roels (Grandparents) filed a petition pursuant to A.R.S. § 25–409 to obtain court-ordered visitation. The trial court entered a temporary order allowing them to participate in Roels's supervised parenting time for a minimum of one hour per month. At that time, they had not spoken to the children in nearly four years, at Friedman's insistence.

¶ 5 The trial court conducted a two-day hearing in August 2015. Grandparents testified that before the parents' separation, they had enjoyed a close relationship with the children. They had attended M.'s birth and met R. a week after hers and frequently travelled to Tucson to attend school and sports activities and spend time with the family. On two occasions, they had provided child care during the day for multiple-day periods and were a regular presence in the children's lives. After the separation, Friedman cut off Grandparents' access to the children and insisted there be no contact between them. Grandparents, however, attempted to maintain contact by sending the children cards and gifts for their birthdays and holidays.¹

¶ 6 The children were initially averse to reuniting with their grandparents: Roels testified that when he first had spoken to them about the visits, M. had stated he "d[id]n't want [Grandparents] to come." After the first visit, however, "there just wasn't any apprehension or ... tension." Delana Cota, a family support specialist who supervised the first visit, described the children's initial reaction to their grandparents as "quiet" and "awkward," but recognized that "the mood of the visit elevated ... [and] [b]ecame more comfortable." When Grandparents left, Cota overheard M. and R. discussing the visit and heard R. ask M., "Do you agree with me, it was good with grandparents," to which M. said, "Pretty nervous about nothing." R. then responded, "You would be fine if they came again, are you with me ... I like them coming."

¶ 7 Bethany Aaronson, another independent visit supervisor, testified that Grandparents planned extensively for their court-ordered visits and the children appeared to enjoy them. She characterized the visits as "very successful" and noted that when Grandparents were around, the activities were more structured and there was "more laughing, more kidding around" and everyone was "a little more involved and engaged." In contrast, Aaronson described visits with only Roels as "unstructured" with "[t]he children often spen[ding] a lot of time looking at their devices." But when Grandparents were present, "the children engaged with the activities, and as a result ... then began engaging with the adults." On one occasion, "the children spontaneously got up and hugged [Grandparents] a second time before they left."

¶ 8 Friedman and two therapists testified the children had anxiety and PTSD² symptoms both during and outside the supervised visits. Beth Winters, the children's former therapist who had never met or evaluated Grandparents, opined that the children "could have been" exhibiting behavior "indicat[iv]e ... [of] trauma" due to Grandparents' visitation, but acknowledged that the children's awareness of their mother's feelings toward their grandparents could have influenced them. She also agreed that it is "important for children to have grandparents in their lives." Karen Morse, the children's other therapist, similarly testified they had been "trauma[tized]" in the past, but were improving as of October 2014. Morse, who also had never met or evaluated Grandparents, concluded that news of court-ordered grandparent visits had caused the children to become more anxious, and opined that they experienced trauma during Grandparents' visits.

¶ 9 The trial court found the expert opinions to be of limited usefulness, and in a detailed under-advisement ruling, after considering all relevant evidence, "including the demeanor and credibility of the parties," determined it was in the children's best interests to have visitation with their grandparents. The court entered an order entitling Grandparents to video calls with the children every two weeks and allowing them to participate in portions of Roels's supervised parenting time.³ Friedman filed a timely motion for new trial, which the court denied, and this appeal of the denial of the motion for new trial followed. We have jurisdiction pursuant to A.R.S. § 12–2101(A)(5).

Grandparents' Visitation Request

¶ 10 Friedman contends the trial court erred in awarding Grandparents visitation despite Friedman, as the children's "only fit parent," having determined the visits were contrary to the children's best interests. We review the decision to award grandparent visitation for an abuse of discretion. McGovern v. McGovern , 201 Ariz. 172, ¶ 6, 33 P.3d 506, 509 (App. 2001).

¶ 11 Section 25–409(C), A.R.S., provides "a person other than a legal parent may petition the superior court for visitation with a child" and the court "may grant visitation rights during the child's minority on a finding that the visitation is in the child's best interests and ... [f]or grandparent or great-grandparent visitation, the marriage of the parents has been dissolved for at least three months." Subsection (E) further states:

In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents' opinion of what serves their child's best interests and consider all relevant factors including:

1. The historical relationship, if any, between the child and the person seeking visitation.

2. The motivation of the requesting party seeking visitation.

3. The motivation of the person objecting to visitation.

4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities.

§ 25–409(E). Subsection (F) adds, "If logistically possible and appropriate, the court shall order visitation by a grandparent or great-grandparent if the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child." § 25–409(F). Finally, subsection (G) directs grandparents and great-grandparents to petition for visitation in the same case in which the court determined the parents' legal decision-making authority and parenting time. § 25–409(G).

¶ 12 As § 25–409(E) states, a trial court considering a request for non-parent visitation must give "special weight to the legal parents' opinion of what serves their child's best interests." This aligns with the Supreme Court's holding in Troxel v. Gran ville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). As Friedman points out, the Court in that case held that parents have a fundamental liberty interest under the Fourteenth Amendment to the "care, custody, and control of their children," with a "presumption that fit parents act in the best interests of their children." Troxel , 530 U.S. at 65, 68, 120 S.Ct. 2054 ; see also McGovern , 201 Ariz. 172, ¶ 17, 33 P.3d at 511. "However, grandparent visitation granted within the parameters of § 25–409 ‘does not substantially infringe on parents' fundamental rights.’ " Lambertus v. Porter , 235 Ariz. 382, ¶ 29, 332 P.3d 608, 614 (App. 2014) (Brown, J., dissenting), quoting McGovern , 201 Ariz. 172, ¶ 9, 33 P.3d at 509.

¶ 13 In McGovern , this court set forth "constitutionally based principles that a trial court should ... follow in determining ... grandparent visitation rights under § 25–409." 201 Ariz. 172, ¶ 17, 33 P.3d at 511. First, the court should apply a rebuttable presumption that "a fit parent acts in his or her child's best interest in decisions ... concerning grandparent visitation." Id. And second, the court...