Hustrulid v. Stakebake

The court may not grant joint legal decision-making to a legal parent and a third party requesting custody rights
  • 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).