Sholty v. Sherrill
| Decision Date | 17 July 1981 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 632 P.2d 268,129 Ariz. 458 |
| Parties | June B. SHOLTY, Petitioner, v. William N. SHERRILL, Commissioner of the Pima County Superior Court, and John D. Sholty, real party in interest, Respondents. 4077. |
| Court | Arizona Court of Appeals |
Petitioner is the mother and custodial parent of three children, ages 13, 11 and 8. Her special action challenges an order of the respondent court denying her motion to amend a June 1980 order granting the children's father's Ohio visitation during the summer of 1981. Although we find no abuse of the respondent court's discretion, we assume jurisdiction to address this source of needless litigation when children refuse, in varying degrees, to visit a non-custodial parent.
The Sholtys obtained a divorce in Ohio in 1976. Custody of their three children was awarded to the mother and the father was to have visitation on certain weekends, holidays, and three weeks each summer. The mother and children moved to Arizona in 1977 and have continued to live here. In June 1980 the father obtained an order from the Ohio court requiring the mother to provide him with reasonable visitation, specifically, a visit with them in Tucson from June 15 through June 20 and then for seven weeks' visitation in Ohio. We granted special action relief to the mother on June 20, 1980, holding that the Arizona court erred in concluding that it was required to give the Ohio order full faith and credit under the Uniform Child Custody Jurisdiction Act. We concluded that Ohio was neither the home state of the children nor did it have a significant connection with the children and their family to satisfy the jurisdictional requirements of the act. See Sholty v. Carruth, 126 Ariz. 458, 616 P.2d 918 (App.1980).
On June 23, 1980, a hearing was held on the father's request for visitation. According to Dr. Frank Petroni, a psychologist retained by the mother, all three children manifested fear reactions to an Ohio visit and, therefore, he recommended that any visit in Arizona be under direct supervision "so that the children can feel safe and secure from physical harm and from being kidnapped and taken to Ohio." Both the mother and father testified and the respondent court denied the father's request to have summer visitation with the children in Ohio in 1980. However, the court ordered that the father be granted reasonable visitation including two weeks during the 1981 summer and six weeks each summer thereafter. The father was required to give the mother not less than 45 days' written notice of when the visitation would commence and end. It further ordered that the father be granted a one-week visitation during Christmas in the even-numbered years after giving similar notice. All travel expenses for the visitations were to be paid by the father and he was allowed to have telephone contact with the children. The court also ordered the mother to encourage the children to correspond and communicate with their father. On June 19, 1981, the mother filed a motion to amend the 1980 order because the visitation would seriously endanger the children's physical, mental, moral and emotional health. She alleged that the father had requested visitation from June 25 through July 16 and petitioned the court to deny visitation for the summer of 1981. 1
On June 23, 1981, a hearing was held on the mother's motion. Dr. Irwin, the children's counselor at the Southern Arizona Mental Health Center for about 41/2 months, testified that the children did not want to return to visit their father because of fear. In his opinion, the children would be endangered from an emotional standpoint, particularly the 11-year-old who had demonstrated symptoms of extreme anxiety resulting in sleeplessness, nightmares, and, at times, lack of appetite. This child also had a history of bronchial asthma before coming to Arizona and it was possible that his anxiety might create a problem for him. With respect to the 8-year-old, her fear was partially a reflection of her older brother's. The counselor also indicated that it would not be a reasonable alternative for the court to order one or two of the children to visit in Ohio because the children had formed a bond and were very protective of one another. Dr. Irwin also testified that the children had indicated that they regard Jim White, a friend of their mother, as their father and that White has assumed a parental role. According to him, "Mr. White handles these kids as a parent and in a father role." He further recommended severance of the father's parental rights and adoption of the children by White. He stated that because of the way White handles the children, the fact that he and the mother are not married would not be detrimental to the bonding of the family unit.
The record also reflects that the mother's compliance with the order regarding communication between the children and their father was only perfunctory. Although the father sent letters and gifts, only one letter was written to him. It was in September 1980 and was from the oldest child who made it clear that he and the other two children did not want to have anything to do with their father and had no intention of ever seeing him again. Although the mother knew of the letter's contents and that a Christmas visitation was planned, she did not seek counseling for the children until four months later.
A.R.S. § 25-337(A) provides:
"A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral or emotional health."
Generally, the question of whether to limit the visitation rights of the non-custodial parent is committed to the sound discretion of the trial court but the power is to be exercised with caution and restraint. Only under extraordinary circumstances should a parent be denied the right of visitation. Reardon v. Reardon, 3 Ariz.App. 475, 415 P.2d 571 (1966). This court recognized such extraordinary circumstances in the case of Anonymous v. Anonymous, 27 Ariz.App. 74, 551 P.2d 64 (1976), where the trial court, on its own motion, denied a father's visitation rights with his son until further order of the court because the father had been hospitalized for a mental...
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