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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? n8 The legislature did not provide one definition of in loco parentis for when a person was seeking custody and [***28] a different definition of in loco parentis for when a person was seeking visitation. n7 For context and reference, the entire ILP statute is attached as an appendix to this dissent. The claim, however, is that by being actively involved as a "stepparent," stepmother qualified as a "parent" under the ILP statute even though Cody already had a mother and a father who loved him, cared for him, and were clearly fulfilling their parental roles. normal healthy stepparent stepchild relationship." P37 As the trial court reasoned, the legislature did not grant blanket authority to allow custody or visitation to any stepparent who could show that such visitation, or custody, would be in the child’s best interest. [***34] P34 The factual record is clear that stepmother did not replace Cody’s mother; both were involved in their distinct roles.
While he may use the term “mom” to show affection and to give value to his relationship with [Stepmother], the Court is not persuaded that this is indicia that he views [Stepmother] as mother in the same sense that he views his natural mother. However, based upon the evidence presented, the Court cannot [***5] factually conclude that she stood in loco parentis to Cody as defined by A. The court further concluded that although Cody called Stepmother “mom,” this reference did not indicate that he viewed Stepmother “as mother in the same sense that he views his natural mother. The Dissent mistakenly assumes that “treated as a parent” and “parental relationship” are synonymous with “parent.” But by choosing to authorize visitation for persons “treated as a parent,” the legislature plainly intended § 25-415(C) to apply to non-parent visitation. P17 Our conclusion is underscored by the fact that the legislature authorized in loco parentis visitation even when the child has two legal parents, each with attendant parental rights. Such visitation is not dependent on a finding that the child does not or did not enjoy a meaningful and healthy relationship with one or both legal parents, as suggested by the Dissent. By contrast, in order to obtain in loco parentis custody, a petitioning party must establish, among other things, that it would be “significantly detrimental to the child to remain or be placed in the [***15] custody of either of the child’s living legal parents who wish to retain or obtain custody.” A. n3 The Dissent takes issue with this view, stating, without authority, that “no legal parent can fully exercise ‘parental rights’ to the child when an [in loco parentis] parent . One of the legal parents is deceased or has been missing at least three months. The child’s legal parents are not married to each other at the time the petition is filed. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed. A grandparent, [***24] a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following: 1.
n7 Unless the person was a grandparent or great-grandparent requesting visitation, the legislature provided that such persons must be "in loco parentis." Id.