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DISPOSITION: REVERSED AND REMANDED COUNSEL: Hufford, Horstman, Mongini, Flagstaff, Parnell & Mc Carthy, P. We address this issue in Janette Rae Smith Riepe’s (“Stepmother”) appeal from the denial of her petition for [***2] visitation with her eight-year-old stepson, Cody, filed pursuant to § 25-415(C). § 25-415 to require her to prove that her relationship with Cody was the same as or superior to his relationship with Mother. Regardless, an award of in loco parentis visitation to the grandmother while the mother fulfilled her parental role would impermissibly result in an additional “parent” under the Dissent’s view.
Lankford, Presiding Judge, BARKER, Judge, dissenting. OPINIONBY: TIMMER OPINION: [**313] [*91] TIMMER, Judge P1 Can the superior court award in loco parentis visitation to a widowed step-mother pursuant to Arizona Revised Statutes (“A. S.”) section 25-415(C) (2000) when the stepchild enjoyed good relationships with both legal parents before the father’s death and the child is currently parented by his legal mother?
P31 This dissent considers the factors of required statutory analysis and concludes that the definition of "parent" in the ILP statute which the legislature intended was that which was commonly used in Arizona at the time: "one who begets or brings forth an offspring." This dissent also concludes that regardless of which definition of "parent" is employed, the legislature intended that the ILP statute apply to those who had, at least for some period of time, taken the place of parents, not acted in support of or in addition to already functioning parents. Key Facts and the Trial Court’s Ruling P32 The key facts for our purposes are undisputed. For a period of approximately two years (until father’s untimely death), n11 when Cody was at father’s home, as opposed to mother’s home, he lived with stepmother as well as father.
As to visitation, pertinent portions of the ILP statute provide: A grandparent, great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child[.] A. However, if one adopts the alternative definition of parent ("one who brings up and cares for another") then we must decide whether the person or persons seeking ILP custody or visitation took the place of the parent or acted as an additional parent.
It gave one statutorily mandated definition applicable to both. n8 As to custody, the ILP statute provides in pertinent part: A child custody proceeding may also be commenced in the superior court by a person other than a legal parent . In essence, stepmother’s claim at the trial court and here is that Cody had more than two "parents" and that we should now recognize stepmother as a third, additional "parent." P35 In ruling on stepmother’s claim, the trial court distinguished between the differing roles of a "parent" and a "stepparent." It found that stepmother did not meet her burden of showing that "[the child] has treated her as a parent and that she has formed a meaningful parental relationship with [the child]." (Emphasis added.) Rather, the trial court found that stepmother "has shown that she was a caring and supportive step- parent." (Emphasis added.) The trial court determined that "[the child’s] natural mother and father fulfilled the rights and responsibilities of parents while [stepmother] [***35] played a supportive role to her husbands [sic] role of father to [the child]." P36 In determining the meaning of the ILP statute, the trial court stated that it did not think the legislature intended for in loco parentis status "in every stepparent relationship where it was a good relationship, as it is here." The trial court considered that such an interpretation would "make most every stepparent one who stands in loco parentis to the child." The trial court went on to conclude that the legislature was "looking or asking for something beyond a . the person filing the petition stands in loco parentis to the child. Father had primary physical custody and mother [***33] had parenting time every other weekend, one evening a week, and extended time during school vacations. At the same time, however, mother was fully engaged as Cody’s mother. Cody was five years old when his parents were divorced. Joint legal custody was awarded to mother and father. His parents were Brandy Jo Riepe ("mother") and David Alan Riepe ("father"). Stepmother was actively and appropriately involved in Cody’s life. The legislature required that the stepparent must also be in loco parentis. If the court decides that Stepmother has achieved this status, the court must then consider whether Stepmother should have reasonable visitation rights after applying the factors set forth in A. P13 In light of our conclusion that the court incorrectly interpreted [***11] and applied § 25-415(G)(1), we need not decide whether the court properly assessed the evidence using the incorrect definition of in loco parentis. [**316] [*94] Response to the Dissent P14 Our dissenting colleague asserts that we “unhinge the ties of gender and number contained within Arizona’s definition of the term ‘parent,'” P 127, infra, in an attempt to “judicially accommodate” step-relationships, P 152, infra. The Dissent’s concerns about the social ramifications of this provision are more appropriately raised to the legislature.
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n1 A “legal parent” is “a biological or adoptive parent whose parental rights have not been terminated.” A. She fed Cody, was involved in his classroom, and cared for him both before and after she married Father. Relying on dictionary definitions of “in loco parentis,” she asserts that § 25-415(G)(1) required Stepmother to show that she stood “in the place of” a natural parent in order to receive visitation rights. 468, 470 n.3, 671 P.2d 909, 911 n.3 (1983) (acknowledging that unless legislature clearly expresses intent to give term a special meaning, court gives words used in statutes their plain and ordinary meaning, which can be gleaned from dictionaries). Notice shall include a copy of the petition and any affidavits.