Opinion text
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
JANET ZARATE, Petitioner/Appellee,
v.
ADRIANA RIOS, Respondent/Appellant.
No. 1 CA-CV 25-0810 FC
FILED 07-09-2026
Appeal from the Superior Court in Maricopa County
No. FN2025-092502
The Honorable Lisa C. Boddington, Judge Pro Tempore
VACATED AND REMANDED
COUNSEL
Moshier Law, Phoenix
By Trail Potter
Counsel for Petitioner/Appellee
Genesis Legal Group, Gilbert
By Ryan Claridge
Counsel for Respondent/Appellant
ZARATE v. RIOS
Opinion of the Court
OPINION
Judge James B. Morse Jr. delivered the opinion of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Brian Y. Furuya joined.
M O R S E, Judge:
¶1 Adriana Rios ("Grandmother") appeals the superior court's
grant of an order of protection, sought by Janet Zarate ("Mother"), that
prohibits her from having contact with her 12-year-old grandchild
("Child"). Because Mother's petition constituted a non-emergency legal
decision, and because Grandmother's son, Carlos Rios II ("Father") holds
sole legal decision-making authority for Child, Mother lacked the authority
to file the petition, which Father opposed. Accordingly, we vacate the order
of protection.
FACTS AND PROCEDURAL BACKGROUND 1
¶2 Child is the daughter of Mother and Father. In August 2024,
the family court awarded Father sole legal decision-making authority and
limited Mother to supervised parenting time based on domestic violence
committed by Mother against Child and her siblings and concerns about
Mother's mental health.
¶3 In early July 2025, Mother petitioned for an ex parte order of
protection on behalf of Child against Grandmother. The petition alleged
that, in late May 2025, Grandmother yelled at Child, slapped Child's face,
and threw a phone at Child. The petition also alleged that Child felt
"unsafe" at Father's home, where Grandmother lived. The court granted
the order, and Grandmother requested a hearing.
¶4 At the contested hearing, Mother presented evidence of
Child's statements to her, a statement from the parenting-time supervisor,
an emailed poem and letter Mother claimed Child authored, and a police
report that supported the petition's allegations of Grandmother's physical
violence towards Child. Grandmother's counsel objected to the admission
of the emailed poem and letter because of the inability to cross-examine
1 "We view the evidence in the light most favorable to upholding the
trial court's ruling." Mahar v. Acuna, 230 Ariz. 530, 532, ¶ 2 (App. 2012).
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Opinion of the Court
Child. The superior court overruled the objection. Grandmother and
Father both testified that no domestic violence occurred, and Grandmother
testified Mother might have fabricated the emailed poem. The superior
court found Grandmother had committed an act of domestic violence by a
preponderance of the evidence and affirmed the order of protection.
¶5 Grandmother timely appealed and we have jurisdiction
under A.R.S. § 12-2101(A)(5)(b). See also Ariz. R. Prot. Ord. P. 42(a)(2), (b)(2).
DISCUSSION
¶6 Grandmother argues that Mother lacked authority to file the
petition for an order of protection on behalf of Child. Grandmother also
argues Mother failed to present sufficient evidence to support the order of
protection and the superior court violated her due process rights by
denying her the opportunity to cross-examine Child. She further contends
that granting the order of protection "de facto reversed" the family court's
prior parenting-time and legal decision-making order.
I. Mother's Legal Authority.
¶7 Grandmother argues that Mother lacked legal authority to
bring this petition on behalf of Child because Father held sole legal
decision-making authority. Mother counters that, because she is one of
Child's parents, she has the authority to file a petition for an order of
protection on Child's behalf. See A.R.S. § 13-3602(A); Ariz. R. Prot. Ord. P.
5.
¶8 We review "a superior court's decision to continue an order of
protection after a contested hearing" for an abuse of discretion. Flynn v.
Flynn, 257 Ariz. 1, 3, ¶ 7 (App. 2024). We review any questions of law de
novo. Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5 (App. 2014). Mother is
correct that A.R.S. § 13-3602(A) permits a parent to petition for a protective
order on behalf of their child. However, Mother's parenting authority has
been substantially limited under A.R.S. § 25-401 by the family-court order
giving Father sole legal decision-making authority for Child. Because both
statutes address a parent's authority, we strive "to give effect to all of the
provisions involved." Stambaugh v. Killian, 242 Ariz. 508, 509, ¶ 7 (2017); see
also State ex rel. v. Farley, 106 Ariz. 119, 122 (1970) (stating statutes that "relate
to the same subject" should be "construed as one system governed by one
spirit and policy").
¶9 By statute, "'[l]egal decision-making' means the legal right
and responsibility to make all nonemergency legal decisions for a child
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Opinion of the Court
including those regarding education, health care, religious training and
personal care decisions." A.R.S. § 25-401(3). "'Sole legal decision-making'
means one parent has the legal right and responsibility to make major
decisions for a child." A.R.S. § 25-401(6).
¶10 The decision to file a petition seeking an order of protection is
a legal decision. But, under the family court's order, Father has the right to
make "all" such decisions in non-emergency situations. See A.R.S. §
25-401(3), (6). Our supreme court has recognized the breadth of authority
encompassed in a grant of sole legal decision-making authority. Nicaise v.
Sundaram, 245 Ariz. 566 (2019). Noting a parent with joint legal decision-
making authority can "establish a bank account for the child, take the child
to a doctor, and exercise other nonemergency legal authority on behalf of
the child," the superior court impliedly concluded a parent without legal
decision-making authority cannot take any of these actions. See id. at 568–
69, ¶¶ 14–15 (distinguishing "shared legal decision-making" when parents
have joint legal decision-making authority from the "unshared" authority
created by sole legal decision-making).
¶11 Thus, Mother could only seek the order of protection if doing
so was an emergency decision that would fall outside of A.R.S. § 25-401(3).
The timing and circumstances do not suggest that this was an emergency
decision. In the petition, Mother alleged events that had occurred more
than 30 days before she filed the petition. And while the petition alleged
an act of domestic violence, it does not allege any exigent threat to Child's
safety. Compare A.R.S. § 13-3602 (providing the procedure and
requirements for an order of protection) with A.R.S. § 13-3624 (providing
the same for emergency orders of protection based on a showing of
"immediate and present danger of domestic violence based on an allegation
of a recent incident of domestic violence"). Mother's petition did not allege
that she was seeking an emergency order of protection. Under these facts,
Mother's decision to seek an order of protection was not an emergency legal
decision. See A.R.S. § 25-401(3). Given Father's sole legal decision-making
authority, and the lack of any emergency, Mother lacked the legal authority
to petition for a protective order on Child's behalf over Father's opposition.
¶12 Moreover, under A.R.S. § 25-411(A), Mother may petition to
modify legal decision-making and parenting time if "there is reason to
believe the child's present environment may seriously endanger the child's
physical, mental, moral or emotional health" or if there is evidence that
domestic violence has occurred since the prior order. While Mother's lack
of legal decision-making authority limits her ability to petition for an order
of protection here, she may seek relief through the procedures set forth in
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Opinion of the Court
Title 25, and the family court retains its supervisory authority over the
subjects of her petition. Accordingly, we vacate the order of protection and
do not address the other arguments raised by the parties.
II. Attorney Fees.
¶13 Mother requests attorney fees and costs under ARCAP 21,
Arizona Rules of Protective Order Procedure 2 and 39, and A.R.S. § 25-324.
We decline to award Mother attorney fees and costs. However,
Grandmother, as the successful party, is entitled to recover her costs upon
compliance with ARCAP 21. See A.R.S. § 12-341.
CONCLUSION
¶14 For the foregoing reasons, we vacate the order of protection
and remand for further proceedings consistent with this opinion.
MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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