                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                              In re the Matter of:

                    GINA L. GANN, Petitioner/Appellant,

                                        v.

              TARYN L. GANN, et al., Respondents/Appellees.


                           No. 1 CA-CV 19-0039 FC
                                FILED 10-10-2019


           Appeal from the Superior Court in Maricopa County
                          No. FC 2018-004038
                  The Honorable Justin Beresky, Judge

                      REVERSED AND REMANDED


                               APPEARANCES

Gina L. Gann, Apache Junction
Petitioner/Appellant
                          GANN v. GANN, et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Michael J. Brown and Judge Lawrence F. Winthrop joined.


C A M P B E L L, Judge:

¶1            Gina L. Gann (“Grandmother”) appeals the superior court’s
ruling denying her petition for visitation with her three grandchildren. In
considering a grandparent’s petition for visitation with their grandchildren,
a superior court must give “special weight” to a fit parent’s determination
of whether visitation is in the grandchildren’s best interest according to the
principles set forth in McGovern v. McGovern, 201 Ariz. 172, 177–78, ¶ 18
(App. 2001). Because the superior court applied an interpretation of “special
weight” that is no longer the law in Arizona, we reverse and remand.

                             BACKGROUND

¶2           Grandmother has three minor grandchildren by her
daughter, Taryn L. Gann (“Mother”). The two older children’s father has
no parental rights. The youngest child’s father is Rocky Hernandez,
Mother’s fiancé.

¶3           For significant periods of time from 2012 to 2016, Mother and
the older two children lived with Grandmother, and Grandmother was
involved in the children’s daily lives. In the fall of 2016, Mother and the
children moved in with Hernandez. The youngest child was born in
February 2017.

¶4            In 2018, Grandmother petitioned the superior court for,
among other things, (1) in loco parentis legal decision-making and physical
custody of the two older children, and (2) reasonable third-party visitation
for all three children under A.R.S. § 25-409. Grandmother later, in her
pre-trial statement, requested visitation every other weekend and on
vacations.

¶5            Mother and Hernandez moved to dismiss Grandmother’s
petition claiming that she “has a history of irrational behavior and becomes
threatening and aggressive towards Mother and [Hernandez] when she
does not get her way.” Following an evidentiary hearing, the superior court
denied Grandmother both legal decision-making and visitation.


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                            Decision of the Court

¶6            After an unsuccessful motion for new trial, Grandmother
appealed.

                                DISCUSSION

¶7             On appeal, Grandmother challenges the visitation ruling
only. This Court will not disturb the superior court’s ruling on visitation
absent an abuse of discretion. See McGovern, 201 Ariz. at 175, ¶ 6. An abuse
of discretion occurs when the court “commits an error of law in the process
of reaching a discretionary conclusion.” In re Marriage of Williams, 219 Ariz.
546, 548, ¶ 8 (App. 2008). Determining the appropriate burden of proof is a
question of law, which we review de novo. See Am. Pepper Supply Co. v. Fed.
Ins. Co., 208 Ariz. 307, 309, ¶ 8 (2004).

¶8          Section 25-409 authorizes a grandparent to petition the
superior court for visitation with their grandchildren. See § 25-409(C).
Under subsection (C), the court may only grant visitation if the grandparent
can demonstrate one of four conditions:

       1. One of the legal parents is deceased or has been missing at
       least three months. . . .

       2. The child was born out of wedlock and the child’s legal
       parents are not married to each other at the time the petition
       is filed.

       3. For grandparent or great-grandparent visitation, the
       marriage of the parents of the child has been dissolved for at
       least three months.

       4. For in loco parentis visitation, a proceeding for dissolution of
       marriage or for legal separation of the legal parents is pending
       at the time the petition is filed.

Id. Here, Grandmother is eligible for visitation under the second condition
for the youngest grandchild and under the third condition for the older two
grandchildren.

¶9             In addition to finding that one or more of the conditions is
satisfied, the superior court must also determine that visitation is in the
grandchildren’s best interests. See id. In making this determination, the
court must consider all relevant factors including:




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                            Decision of the Court

       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).1

¶10          The superior court’s ruling reflects that it considered and
made findings under § 25-409(E). The court found, among other things, that
Grandmother significantly bonded with her older two grandchildren
during the time they lived with her, but the relationship had since become
“sporadic.” The court also found Grandmother’s motivation in seeking
visitation was to “maintain a significant relationship with the children.”
The court acknowledged that Mother’s objection to visitation was based on
Grandmother’s failure to “follow parenting requests.” It also noted that
Mother believes Grandmother tries to manipulate the children, and that
Grandmother made a false or misleading report against Mother to the
Department of Child Safety. The court found Mother willing to allow
Grandmother to see the grandchildren at family gatherings and concluded
that if Grandmother were to disregard parental requests regarding diet and
bedtime during visitation, “it could have an adverse impact on the
children.”

¶11          There is evidence in the record to support the superior court’s
findings, and we have no reason to question them. However, we must
examine how the court evaluated the evidence.

¶12            In making a best-interests finding, § 25-409(E) requires the
superior court to give “special weight” to the parents’ opinion on visitation.
The statute itself does not define “special weight.” See § 25-409. In 2016, this
Court interpreted the phrase “special weight” in Goodman v. Forsen, 239
Ariz. 110, 113–14, ¶ 13 (App. 2016):

       Assuming parental fitness, the analysis required under
       § 25–409 is not a typical balancing test in which the court’s

1There is a fifth condition that applies only if one or both parents are
deceased. See § 25-409(E)(5).


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                             Decision of the Court

       own determination of best interests is controlling—we
       interpret “special weight” to mean that the parents’
       determination is controlling unless a parental decision clearly
       and substantially impairs a child’s best interests. Even if arbitrary,
       the parents’ determination is the primary factor in the
       analysis, and the burden is on the person seeking visitation to
       demonstrate that denial of visitation would clearly and
       substantially impair the child’s interests.

(emphases added). Two years later, the Arizona Supreme Court expressly
rejected Goodman’s interpretation of special weight. See In re Marriage of
Friedman & Roels, 244 Ariz. 111, 116, ¶ 19 (2018) (disavowing Goodman
“insofar as it purports to subject a nonparent to a heightened burden of
proof”).

¶13            Although the superior court’s decision in this case was
entered five months after the Friedman decision, the court quoted from
Goodman and expressly applied its “special weight” interpretation.
Specifically, the court concluded that “Grandmother has not proven by a
preponderance of the evidence that Mother’s decision to deny
Grandmother’s visitation clearly and substantially impairs the Children’s best
interests.” (Emphasis added.)

¶14            Because the superior court applied a standard that is no
longer the law in Arizona, we must vacate and remand to allow the court
to redetermine whether Grandmother’s requested visitation is in the
children’s best interests. In doing so, the court should apply the holding
from Friedman where the Arizona Supreme Court explained that it would
interpret the phrase “special weight” in line with the United States Supreme
Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000), and this Court’s
decision in McGovern. See Friedman, 244 Ariz. at 116, ¶ 20.

¶15           In Troxel, the court started from the presumption that “fit
parents act in the best interests of their children.” 530 U.S. at 68. Relying on
that presumption, the court introduced the notion of “special weight”:

       In an ideal world, parents might always seek to cultivate the
       bonds between grandparents and their grandchildren.
       Needless to say, however, our world is far from perfect, and
       in it the decision whether such an intergenerational
       relationship would be beneficial in any specific case is for the
       parent to make in the first instance. And, if a fit parent’s
       decision of the kind at issue here becomes subject to judicial



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                            Decision of the Court

       review, the court must accord at least some special weight to the
       parent’s own determination.

Id. at 70 (emphasis added).

¶16           In McGovern, this Court distilled two principles from Troxel.
See McGovern, 201 Ariz. at 177, ¶ 17. First, there is a presumption that a fit
parent acts in his or her child’s best interest and a grandparent seeking
visitation has the burden of rebutting that presumption. See id. Second, the
superior court must consider and give some “special weight” to a fit
parent’s determination of whether visitation is in the child’s best interest
and give “significant weight” to a parent’s voluntary agreement to some
visitation. See id. at 177-78, ¶ 18. The principles set forth in McGovern
establish a lesser burden of proof on Grandmother than that required by
Goodman and applied by the superior court in this case. See Goodman, 239
Ariz. at 113–14, ¶ 13. On remand, the court should apply the principles
articulated in McGovern to the evidence presented and require the parties
to present updated information for the court’s consideration.

                               CONCLUSION

¶17            For the foregoing reasons, we reverse and remand to the
superior court for a determination of whether Grandmother’s visitation is
in the best interests of the grandchildren, applying the standard set forth in
Troxel and McGovern.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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