Finck v. O'Toole

In Finck v. O'Toole, 179 Ariz. 404, 880 P.2d 624 (1994), the court noted that the legislature had only provided procedures for awarding visitation to noncustodial parents, grandparents, and great-grandparents. Id. at 407, 880 P.2d at 627. In light of the legislature's specificity in listing the classes of parties entitled to visitation, the court reasoned that the legislature did not intend to authorize visitation for unspecified third parties, including step-parents and step-grandparents. Id. In a special concurrence, Justice Zlaket speculated that the legislature had not consciously intended to exclude step-parents or step-grandparents from obtaining visitation with children to whom they stood in loco parentis. Id. at 408, 880 P.2d at 628. Consequently, he stated that the issue "cried out for legislative clarification." Id. In Finck, the parents of a presumed father were raising a child that they believed to be their grandson. Id. at 405, 880 P.2d at 626. The father was in prison. Id. The mother, who was not parenting the child at the time, filed for divorce. Id. As part of the divorce proceedings it was learned that the child was not the biological child of the presumed father. Id. The presumed grandparents had no biological relationship to the child. Because of this, they now became step-grandparents as opposed to grandparents as they had previously believed. The father did not respond to the divorce proceedings. Id. A default, along with an order of custody of the child, was granted to the mother. Id. The step-grandparents refused to turn the child over to the mother but were compelled to do so by means of a separate habeas corpus proceeding. Id. at 405 n.1, 880 P.2d at 625 n.1. Thus, the custody rights of the step-grandparents to the child were not at issue. The step-grandparents were not parties in Finck. Id. at 407 n.2, 880 P.2d at 627 n.2. The real party in interest was the child. Based on the recommendation of assigned court personnel (Expedited Visitation Services), the trial court had granted visitation to the step-grandparents. Id. at 405, 880 P.2d at 626. The mother filed a special action with regard to the grant of visitation to the step-grandparents. Id. She claimed the grant of visitation was outside the jurisdiction of the court as there was no biological relationship between the child and the step-grandparents. Id. In Finck, the step-grandparents appear to have taken the place of the mother and father for a period of time. The father was in prison, and the child was living with the step-grandparents. The step-grandparents "refused, repeatedly to turn the child over to the mother." Finck, 179 Ariz. at 405 n.1, 880 P.2d at 625 n.1. Both the supreme court and the court of appeals noted that the step-grandparents "were acting in loco parentis to the child." Id.