Arizona Court of Appeals Division One Holds That a Court Must Presume That a Biological Parent’s Decision Whether to Allow a Former Same-Sex Partner to Have Visitation with a Child Is Made in the Child’s Best Interest

Egan and Hochmuth ended a seventeen-year same-sex relationship.  During their relationship, the couple had a child; Egan gave birth to the child after the couple’s mutual friend donated sperm.  The couple raised the child together for seven years until they decided to separate.  Following the separation, Egan and Hochmuth initially shared equal time with the child.  Later, Egan became concerned with the arrangement and Hochmuth agreed to reduce visitation to Sunday through Thursday, every other week.  After Egan further reduced Hochmuth’s visitation schedule, Hochmuth filed a petition for “custody/visitation” as a person standing “in loco parentis” under A.R.S. § 25-415(C).  The parties stipulated that Hochmuth had “in loco parentis” status.  At an evidentiary hearing, the court heard testimony from both Hochmuth and Egan, among others.  In its ruling, the court found that the parties were equally involved with the child’s upbringing, that the child was doing well in school, and that the only evidence of negative impact of the equal time arrangement was Egan’s own testimony that the child had suffered a “breakdown.”  The court granted Hochmuth visitation rights using a visitation plan that divided the child’s time equally between Egan and Hochmuth.  Egan filed a special action to challenge the superior court’s order.

Division One of the Court of Appeals accepted jurisdiction and vacated the superior court’s order granting visitation rights.  Section 25-415(C) gives a court the power to grant visitation rights to a person standing in loco parentis.  As an initial matter, the Court rejected Egan’s contention that A.R.S. § 25-415 requires a nonparent to establish a complete denial of visitation rights; Hochmuth’s claim for visitation could go forward even though Egan granted some visitation rights.

The Court next determined whether the superior court gave sufficient weight and procedural protections to Egan’s preferences as a parent in light of Egan’s constitutional right to raise her child.  For guidance, the Court examined decisions addressing these constitutional issues in the context of grandparent-visitation cases.  In those cases, courts are directed to apply a presumption that a fit parent’s decisions regarding visitation are in a child’s best interests, and give added weight to the parent’s decisions regarding visitation. 

Hochmuth asserted that the principles from the grandparent cases should not apply to her situation because she is in a substantively different position with respect to the family unit than a typical grandparent.  The Court disagreed.  Although a court should consider “the nature and quality of the relationships” when making visitation decisions, the Court held that “Hochmuth’s relationships with Egan and the child, standing alone, are not a sufficient basis” to overcome the presumption that a fit parent’s visitation decision is in the child’s best interests.  The Court reasoned that nothing in the language or legislative history of A.R.S. § 25-415(C) suggested that the legislature meant to limit the “fit parent presumption.”  Finally, the Court held that Hochmuth was not a “parent” under Arizona domestic relations statutes and therefore did “not enjoy the same legal rights as Egan.”  The evidence of Hochmuth’s relationship with Egan and the child were relevant to determining the proper scope of visitation, but such evidence did not entitle Hochmuth to visitation as a matter of right.

The Court, therefore, applied the principles from the grandparent cases, holding that a trial court considering a petition for in loco parentis visitation under A.R.S. § 25-415(C) must apply four procedural and evidentiary safeguards:  the court must (1) apply the fit parent presumption; (2) “give ‘some special weight’ to the parent’s” decision “whether visitation is in the child’s best interests and give ‘significant weight’ to the parent’s voluntary agreement to permit some visitation;” (3)  “consider the best interest factors listed in [Arizona statutes];” and (4) “take into consideration other relevant best interests factors such as the degree to which the parent has consented to and fostered the nonparent’s relationship with the child, including any agreements the parties made as to visitation arrangements.”  The Court concluded that the superior court failed to apply any presumption or significant weight to Egan’s visitation decisions and that the court abused its discretion by granting Hochmuth parenting rights “practically to the same extent as Egan.”

Judge Barker concurred in the judgment only.  In his view, the lower court should have rejected the parties’ stipulation that Hochmuth qualified as a person standing “in loco parentis” under A.R.S. § 25-415.  That statute defines a person standing “in loco parentis,” in part, as “a person who has been treated as a parent by the child.”  According to Judge Barker, the term “parent,” as defined when the statute was adopted, “has number and gender limitations: one man as a father and one woman as a mother.”  Because the legislature has never modified this definition, reasoned Judge Barker, the parties cannot circumvent that definition by way of stipulation.  Thus, because Egan was the child’s female mother, Judge Barker would have found that Hochmuth could not be “treated as a parent.”

Judge Brown authored the opinion in which Judge Downie concurred; Judge Barker concurred in the judgment.