Arizona Ruling Clarifies Legal Requirements for Same-Sex Couple Child Visitation

In 2009, an Arizona appellate court ruled against a woman seeking equal-time visitation rights for the child that she and her same-sex partner had raised from birth. But for gay couples - or any other people who feel they have a parent-child relationship, regardless of legal definitions - the ruling is not all bad news, and may help to clarify the requirements for visitation when same-sex couples break up.Background to the CaseThe couple involved in the case, Michelle Egan and Therese Hochmuth, had been in a committed relationship for ten years when they decided to have a child. Egan was artificially inseminated with sperm donated by a friend, and the couple raised their daughter for seven years before ending their relationship. Initially the couple agreed to alternate weeks spent with the child, but later Egan (the legal parent in the eyes of the law, because she was the birth mother) began limiting the amount of time Hochmuth could spend with the child, eventually reducing the visitations to Monday through Wednesday every other week.Taking her case to court, Hochmuth sought in loco parentis visitation rights. In loco parentis is a legal term meaning someone who acts in the place of a parent. Often, this is a grandparent or other close family member or friend who has had a significant role in the child's life. The trial court granted Hochmuth's petition, giving her temporary visitation rights equal to the time Egan spent with the child. The case (Egan v. Fridlund-Horne) was then appealed to the Court of Appeals, Division One.In an extensive opinion, the Court of Appeals looked at Arizona Revised Statutes section 25-415, the law that allows individuals acting in loco parentis to petition a court for visitation. The court noted that previous cases interpreting the statute had turned on whether the person really was acting in a parental role, but in this case, Egan had not challenged Hochmuth's in loco parentis role. Thus the court had only to decide whether the visitation order was reasonable, and whether it took the best interests of the child into account.The court first established that Arizona precedent dictates that a fit parent's decision to limit visitation is presumptively done in the child's best interest, and that the court must give some weight to the decision by any parent to voluntarily allow someone else visitation time.The court next dealt with the fact that the statute made reference to another Arizona statute, section 25-409(c), which lists the factors a court should consider when granting visitation rights to grandparents. The court found that this reference meant these same factors should be applied to all in loco parentis cases, not just those involving grandparents.Taken together, these considerations convinced the court that the trial court had not considered the child's best interests, or Egan's legal right as a fit parent to limit visitation. In granting the visitation order allowing Hochmuth half of the child's time, the lower court had essentially given Hochmuth equal custody, but without following the legal requirements for awarding custody.What This Means Going ForwardThe ruling in the case does not mean Hochmuth will be unable to have visitation with the child; it just means that the lower court must now re-consider the visitation order in light of the presumption that Egan, as the child's parent, is acting in the child's best interest in limiting the time the child spends with Hochmuth.For same-sex couples with children in Arizona who split up - or anyone who has acted as a parental figure to a child - the ruling does not mean that they will be unable to get a court to approve their visitation petition. Rather, the case clarifies the requirements and establishes that the following factors must be considered in any in loco parentis visitation petition:

• The court should apply a rebuttable presumption that a fit parent's decision to deny or limit visitation was made in the child's best interests.
• The burden of proof is on the non-parent to rebut this presumption.
• The court must give "some special weight" to the parent's determination of whether visitation is in the child's best interests and give "significant weight" to the parent's voluntary agreement to permit some visitation.
• The court must consider the historical relationship, if any, between the child and the person seeking visitation.
• The court must consider the motivation of the requesting party in seeking visitation.
• The court must consider the motivation of the person denying visitation.
• The court must consider the quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities.
• If one or both of the child's parents are dead, the court must consider the benefit in maintaining an extended family relationship.
• The court should also 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.

Because the factors enumerated by the court are varied and every child custody or visitation case is different, anyone concerned about these issues should talk to an experienced Arizona family law attorney to ensure that their legal rights are protected, whether as a parent or a close friend acting in loco parentis.