Arizona Court of Appeals Division One Holds That a Court May Hold a Relocating Parent in Contempt for Failure to Comply with Orders Concerning a Grandparent's Visitation Rights.

The trial court held Melody Munari (“Mother”) in contempt for violating court orders requiring her to make her child available for court-ordered visitation with the child’s grandparents before relocating from Arizona to Missouri and for not providing telephone access thereafter.  The child’s stepfather, Brian Munari (“Stepfather”), who had not been a party to the action, moved to join as a party.  The trial court granted his request, held him in contempt for violating the same visitation orders, and ordered him to pay sanctions and attorneys’ fees.  Noting that contempt orders cannot be appealed, the Arizona Court of Appeals accepted special action jurisdiction.

Petitioners argued the trial court lacked jurisdiction to issue the contempt order, because, under Sheehan v. Flower, 217Ariz. 39, 170 P.3d 288 (App. 2007), only a parent, and not a grandparent, may contest a child’s relocation under A.R.S. § 25-408.  The Arizona Appeals Court dismissed this argument.  The Court explained that although A.R.S. § 25-409(F)automatically terminates a grandparent’s visitation rights if the child has been adopted or placed for adoption, a grandparent’s statutory visitation rights do not automatically terminate upon a child’s relocation.  Additionally, per Sheehan a relocation that is not contested by the non-relocating parent may not be challenged by a grandparent under A.R.S. § 25-408, but any existing visitation orders remain in place after the relocation unless otherwise modified by the superior court after hearing.  The Court thus found the orders concerning the grandparents’ visitation rights valid.

The Court further explained that failing to comply with the court’s valid orders concerning the grandparents’ visitation rights was sanctionable through contempt proceedings.  Where a grandparent has a right to visitation, both the grandparent and the court have the authority to enforce that continuing visitation through contempt proceedings under A.R.S. § 25-414(A)(1) even though the parent may choose to relocate the child.  A trial court also has the inherent power to hold a party in contempt for violating a court order.

Notwithstanding the above, the Court agreed with Petitioners that the trial court abused its discretion by holding the stepfather in contempt because he was not a party to the action until after the mother had already violated the trial court’s order.  The Court explained that the trial court simply could not hold a party in contempt for violating orders to which he was never subject.  The Court also explained that, as only the child’s stepfather, he did not have the legal ability to control the child, and therefore had no ability to comply with the trial court’s order even if he had been subject to it.  Accordingly, the Court vacated the contempt order against the stepfather, but denied the mother relief.

Judge Snow authored the opinion, with Presiding Judge Ehrlich and Judge Hall concurring.