Hustrulid v. Stakebake

  • May the court grant joint legal decision-making to a legal parent and a third party requesting custody rights?
  • What standard does the court apply at an evidentiary hearing regarding third-party legal decision-making and placement?

Facts and Procedural History

Hustrulid was the biological father of two minor children. He was sentenced to prison for three years and his parental rights to the children were terminated, and his sister (Stakebake) adopted both children. After he was released from prison, he continued to have a relationship with the children while in his sister’s care. When his sister cut off contact between Hustrulid and the children, he filed a petition for third-party joint legal decision-making and placement under A.R.S. § 25-409(A), or alternatively third-party visitation under § 25-40(C).

The requirements for third-party decision-making are: (1) the person filing stands in loco parentis to the child; (2) it would be significantly detrimental to be left in the parent’s care; (3) an order for decision-making or parenting time has not been entered within the last year; and (4) one of the parents is deceased, the parents are not married to each other, or an action for divorce or legal separation is pending.

Stakebake filed a motion to dismiss Hustrulid’s petition. The court initially denied the motion to dismiss, but later reversed its ruling and dismissed the petition. The court determined that Hustrulid’s petition was facially deficient because it lacked sufficient factual allegations to establish the significant detriment element. The court also cited to Chapman v. Hopkins, which held that the court only considers the significant detriment element at the initial pleading stage, not at the subsequent evidentiary hearing. Hustrulid appealed.


  • A court cannot award joint legal decision-making to a legal parent and a third-party, because it is inconsistent with the petitioner’s initial burden to establish a prima facie case that it would be significantly detrimental to leave the child in the care of the legal parent.
  • The petition must initially establish the significant detriment element to avoid being summarily dismissed. The facts may be disputed in the initial stage, but disputed facts don’t require dismissal. Well-pled factual allegations assumed true.
  • At the evidentiary hearing, the court must hear the merits of the case, including the § 25-409(A) elements as well as the rebuttable presumption that legal decision-making should remain with the legal parent. Clarifying Chapman, which only determined significant detriment at the initial pleading stage.
  • Secondary holding: An order terminating parental rights does not necessarily preclude the severed parent from filing a petition for third-party rights.

Hustrulid v. Stakebake, 1 CA-CV 21-0073 FC, 2022 WL 3097906 (App. Aug. 4, 2022).

Smith v. Smith

  • Is an initial parenting time order subject to A.R.S. § 25-411(J), which requires the court to make an endangerment finding before restricting parenting time?
  • Is the court required to provide a specific written explanation when it orders less than equal parenting time?

Facts and Procedural History

Mother absconded to Idaho with the parties’ two-year-old child, without notice to Father. The court required Mother to return to Arizona and entered temporary orders for equal parenting time. As the parties approached trial, Father requested a mental health evaluation of Mother. The evaluator determined that Mother had mental health issues, and may not be able to fulfill basic parenting duties such as filling out medical forms. This was especially concerning in this case because the child had a rare genetic disorder that required frequent doctor visits.

Following the final hearing, the court ordered all of Mother’s parenting time to be supervised. Mother appealed, arguing that Arizona has a legal presumption for equal parenting time, and that the court did not make specific findings justifying an award of less than equal time.


There is no legal presumption for equal parenting time in Arizona, despite prior opinions that might have implied something different. Although it is the public policy of Arizona for both parents to participate in legal decision-making and have “substantial, frequent, meaningful and continuing contact” with their children, there is no presumption for equal parenting time that a parent must overcome. Equal parenting time is a “starting point” for the court’s best-interests analysis, and evidence leads the court to the appropriate parenting time schedule.

The trial court does not need to make specific findings explaining its decision for less than equal parenting time, other than the required best-interests findings under A.R.S. § 25-403. Because there is no legal presumption for equal time, there is no requirement for the court to specifically explain why it awarded one parent less time. (Although in most cases, it will probably be clear from the findings anyway.)

When entering an initial parenting time order, the court does not need to make an endangerment finding to restrict a parent’s parenting time (e.g., supervised parenting time). A.R.S. § 25-411(J) applies to subsequent modifications of parenting time, but doesn’t apply to an initial order–even if the court ordered more liberal time on a temporary basis. The court can order supervised parenting time when establishing permanent parenting-time orders for the first time, and does not need to make any specific endangerment findings to support its order. In contrast, subsequent orders modified after the initial decree would require such a finding.

The court has broad discretion to determine parenting time, and the overarching factor in the court’s holistic analysis is the child’s best interests–unrestrained by any legal presumption that might sway the court one way or the other. Equal parenting time may be a “starting point” assuming both parents are fit, but the evidence may justify an award of less than equal time even if the child is not “endangered” under A.R.S. § 25-411(J).

Smith v. Smith, 508 P.3d 793 (App. 2022).

Arizona House Bill 2642

Arizona House Bill 2642 passed the House yesterday. The bill would give children 14 years and up the right to choose which parent they will live with in a divorce or custody proceeding. If the child is under 14, it requires the court to “strongly consider” the wishes of the child. The current law gives much more discretion to judges when considering a child’s wishes.

In some family court cases, a child is mature enough to express a preference on who they want to live with. But in many more cases, children are being influenced by one or both parents in inappropriate ways. It is not uncommon for one parent to poison a child’s relationship with the other parent, even when there are no legitimate concerns about parental fitness.

If the law passes, it will put extreme pressure on children in divorce proceedings to pick sides. Their parents will know that, if they can convince the child to live with them, it will almost ensure a favorable outcome in their case. An award of primary custody also has a significant effect on child support. In the middle of a divorce case, parents frequently act out of malice for the other parent or are motivated by financial gain, rather than the child’s best interest.

A child’s wishes should be a factor in determining custody (which is already the case under current law). However, it should not be the deciding factor. HB2642 would cause huge negative effects in the family court system and on children with divorced parents. It would also create a flood of litigation from parents who have already laid the groundwork to alienate the other parent. I oppose HB2642 and encourage you to contact your representative to express your views.

You can track the bill’s progress here.