Fry v. Garcia – 7/3/2006
Arizona Court of Appeals Division One Holds That Superior Court Is Not Divested of Jurisdiction Over Grandparent Visitation Matter By Marriage of Child’s Parents.
Appellant was the mother (“Mother”) of a child born out of wedlock. Pursuant to A.R.S. § 25-409(A)(3), the paternal grandparents (“Grandparents”) had filed a petition for visitation rights-based in part on the fact that the child was born out of wedlock. The parties had agreed upon a visitation schedule, which was approved by the superior court. When the Grandparents later sought to enforce the visitation order, however, Mother filed a Rule 60(c) motion to set aside the superior court order based on an alleged misrepresentation by Grandparents’ counsel. The superior court denied the motion as untimely. On appeal from that denial, Mother asserted that, because the Grandparents’ statutory visitation rights were based in part on the child being born out of wedlock, the superior court was divested of jurisdiction by the later marriage of the child’s Mother and natural father (“Father”). Division One rejected the argument and held that the superior court had properly denied the Mother’s motion as untimely. The superior court was not divested of jurisdiction because the relevant question under the statute was the marital status of the Mother and Father at the time of the child’s birth. Because the legislature did not explicitly declare an intent to divest the superior court of jurisdiction upon the later marriage of Mother and Father, the Court applied the general rule that jurisdiction is established according to the facts existing at the time an action is filed, and is not lost by subsequent events.
Judge Kessler wrote the opinion for the unanimous panel.