NOVEMBER 30, 2015 VOLUME 22 NUMBER 44
When Mary Lansing (not her real name) gave birth to a daughter in August, 2013, her boyfriend (and the father of her daughter) was already in prison. Four months later, she filed a paternity action naming her boyfriend, and sought a court order granting her sole legal decision making authority and child support.
Her boyfriend’s mother Louise filed a motion to intervene in the paternity action. She asked for a court order giving her regular visitation with her granddaughter. Because Mary had expressed concerns about Louise, and the baby’s father had expressed concerns about Mary, the court appointed what is called a “Court Appointed Advisor” to investigate and report.
A Court Appointed Advisor (let’s call them “CAA”) is a professional, usually trained in mental health or appropriate social services. The court actually has the option of appointing an attorney to represent the child’s wishes (though that wouldn’t have made sense in this case, since the child is still just a little older than two), or an attorney to represent the child’s best interests, or a CAA.
The logic of the CAA appointment makes sense. This professional can visit the home where the child lives, the home where visitation or shared custody might be carried out, and interview all the players. The CAA then becomes a witness — an expert witness, in fact, and (in a sense) the court’s own expert witness. This might help the judge get to the bottom of the dispute more readily.
In this case, the CAA prepared a written report and testified at a temporary visitation hearing. After that hearing, the judge ordered that Louise would have one three-and-a-half hour visitation session (unsupervised) with her granddaughter every Sunday.
Mary appealed the order, arguing that the judge had failed to give sufficient consideration to her basic right to control who would have access to her daughter. She also objected to the judge’s reliance on the CAA report, and to the failure to order Louise to pay her attorney’s fees.
The appellate court upheld the trial judge’s rulings on each issue. It was appropriate to rely on the CAA’s recommendations, said the Court of Appeals; there was no evidence that the judge failed to make his own decision about the child’s best interests. Merely because many of the CAA’s recommendations were adopted, it does not follow that the judge improperly “delegated” his decision-making role.
A large part of the trial judge’s ruling relied on the obvious animosity between Mary and her ex-boyfriend’s earlier girlfriend, the mother of his first child. The fact that Louise indicated a desire to let her two granddaughters (and half-sisters) get to know one another should not prevent her involvement in the child’s life.
One other point made by the trial judge (and approved by the Court of Appeals): the amount of intrusion on Mary’s parenting was very limited. A single weekly session for just a few hours should not be seen as much imposition. Mary’s objections, though not irrelevant, should not preclude Louise’s ability to maintain at least some slight contact with her granddaughter.
On the subject of attorney’s fees, the trial judge had noted that Mary’s behavior in the court proceedings was “abusive and unnecessary.” Based on that, and on the fact that Louise was successful in securing a visitation order, the trial judge had refused to order Louise to pay any portion of Mary’s attorney fees.
On the other hand, the trial judge had declined to order Mary to pay any of Louise’s fees — not because she should not have to pay, but because she had no assets from which to pay. The Court of Appeals explicitly approved the trial judge’s handling of the attorney fee issue. Lambertus v. Day-Strange, November 19, 2015.
There are few (perhaps surprisingly few) Arizona appellate cases about grandparents’ visitation rights. Most of the cases that are decided at the appellate level are “memorandum” decisions — meaning that they are not supposed to be cited as precedent in later cases, though they do represent the appellate judges’ thinking on the issue. Mary and Louise’s dispute was resolved in just such a memorandum decision.
Imagine that you are having a dispute with the mother (or father) of your grandchild, and that you want to seek a court mandate that you have visitation rights. Assuming that your dispute is in Arizona, what does this case tell you about your chance of success, or alternative approaches you ought to consider? (If your dispute is not in Arizona, do not take this case or anything we write here as indication of a single thing about your dispute — talk to a lawyer in your state.)
Probably not a lot. Each grandparent visitation case will be dependent on its own facts, and the collection of evidence (and its presentation in court) can make facts difficult to pin down with clarity. The process can be cumbersome and expensive, and bad interpersonal relationships are unlikely to improve in the course of litigation.
Probably the best take-away from Mary and Louise’s legal dispute is that you should start by reading the Arizona statute on grandparent visitation (look particularly at subsection C for visitation). It is important to understand that the statute does not tell you that if you meet the basic standards you will be entitled to a visitation order. Instead, the statute is a threshold issue: if your case does not meet one of the four criteria for a visitation proceeding, there is no recourse under the statute at all.