In Re the Marriage of Farnsworth & Gillies

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

IN RE THE MARRIAGE OF

AMY FARNSWORTH,
Petitioner/Appellee,

and

RICHARD GILLIES,
Respondent/Appellant.

No. 2 CA-CV 2024-0236-FC
Filed March 20, 2025

Appeal from the Superior Court in Pima County
Nos. D20220308 and D20220397 (Consolidated)
The Honorable Helena Seymour, Judge Pro Tempore

REVERSED AND REMANDED

COUNSEL

Tucson Bankruptcy and Family Law LLC, Tucson
By Caleb N. Brown
Counsel for Petitioner/Appellee

Reardon House Colton PLC, Scottsdale
By Kristi A. Reardon, Taylor S. House, and Sally M. Colton

and

Assini & Associates PLLC, Tucson
By Rebecca S. Assini
Counsel for Respondent/Appellant
 IN RE MARRIAGE OF FARNSWORTH & GILLIES
Opinion of the Court

OPINION

Presiding Judge Eckerstrom authored the opinion of the Court, in which
Judge Vásquez and Judge Sklar concurred.

E C K E R S T R O M, Presiding Judge:

¶1 In this appeal, we are asked to interpret the meaning of A.R.S.
§ 25-409(C)(2). That statute allows for third-party visitation with a minor
child when the child was born out of wedlock and, as relevant here, “the
child’s legal parents are not married to each other at the time the petition is
filed.” Because the trial court improperly concluded that the statute
requires the child to have two legal parents before granting third-party
visitation, we reverse and remand.

Factual and Procedural Background

¶2 In December 2009, Amy Farnsworth (“Mother”) was
pregnant with M.F. when she began dating Richard Gillies (“Stepfather”).
Mother gave birth to M.F. in August 2010. Mother and Stepfather married
in 2012.

¶3 The putative biological father of M.F., J.P., never established
paternity. At some point during the parties’ marriage, J.P. signed a
voluntary relinquishment to allow Stepfather to begin the adoption process.
Thereafter, Mother began the process for Stepfather to adopt M.F. but never
completed it. The trial court found that Stepfather was the only father M.F.
had ever known.

¶4 In February 2022, Mother and Stepfather both filed petitions
for dissolution of their marriage, which the trial court consolidated.
Stepfather also petitioned for third-party rights with M.F., seeking joint
legal decision-making authority and parenting time or “significant
visitation” with M.F. In August 2022, the court denied Stepfather’s petition
for third-party legal decision-making and placement because he had failed
to establish it would be significantly detrimental to be placed in the care of
Mother, and Arizona law does not allow a court to award joint legal
decision-making authority to a legal parent and a third party.

¶5 In June 2024, the trial court found it “lack[ed] jurisdiction” to
grant Stepfather non-parental visitation rights with M.F. under

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Opinion of the Court

§ 25-409(C)(2) because, as Mother is M.F.’s only legal parent, “the
requirement that the child’s legal parents are not married to each other
cannot be satisfied.”1 However, the court nevertheless evaluated the
required factors under § 25-409(E) for whether to grant Stepfather
non-parental visitation “in the event that” we concluded its “determination
of lack of jurisdiction” was legally erroneous. This appeal followed. We
have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 12-2101(A)(1).

Discussion

¶6 Stepfather argues the trial court incorrectly interpreted
§ 25-409(C)(2). Specifically, he argues that subsection (C)(2) is satisfied
when there is only one legal parent.2 The parties do not dispute that M.F.
was born out of wedlock. Nor do they dispute that M.F. had no legal
parents married to each other at the time the petition for visitation was filed.
They do dispute the applicability of the dual grounds of § 25-409(C)(2) for
non-parental visitation when a child, like M.F., has only one legal parent.

¶7 We review the interpretation of a statute de novo. Duckstein
v. Wolf, 230 Ariz. 227, ¶ 8 (App. 2012). “If a statute’s language is clear and
unambiguous, we apply it without resorting to other methods of statutory
interpretation.” Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268 (1994). If there is
more than one rational interpretation, courts will resolve that doubt by
considering the statute’s subject matter and context, the spirit and purposes
conveyed by that language and, if necessary, its legislative history. Id.; State
ex rel. Ariz. Dep’t Revenue v. Tunkey, 254 Ariz. 432, ¶¶ 31-32 (Bolick, J.,
concurring) (allowing courts to consider legislative history as secondary

1Although the trial court determined “it lack[ed] jurisdiction,”
§ 25-409(C)(2) is not jurisdictional. See Sheets v. Mead, 238 Ariz. 55, ¶ 9 (App.
2015) (“Here, the court’s power to conduct visitation and parenting time
proceedings is provided by A.R.S. § 25-402, and § 25-409 simply sets forth
the substantive criteria that govern visitation petitions.”); see also Taliaferro
v. Taliaferro, 186 Ariz. 221, 223 (1996) (distinguishing between authority of
court to do particular thing and power of court to entertain action of
particular subject matter).
2The trial court also found the conditions set forth by subsections

(C)(1), (C)(3), and (C)(4) were not satisfied. Stepfather only argues the
conditions of subsection (C)(2) on appeal.

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Opinion of the Court

interpretative tool but requiring courts to choose “plain meaning over
legislative intent when the two diverge”).

¶8 Subsection 25-409(C) governs third-party visitation rights.
“[A] person other than a legal parent may petition . . . for visitation with a
child,” which “[t]he superior court may grant . . . on a finding that the
visitation is in the child’s best interests” and one of the situations in
subsections (C)(1)-(4) is true. Subsection (C)(2) provides, in full: “The child
was born out of wedlock and the child’s legal parents are not married to
each other at the time the petition is filed.” The legislature has defined
“legal parent” as “a biological or adoptive parent whose parental rights
have not been terminated” and “does not include a person whose paternity
has not been established pursuant to § 25-812 or 25-814.” A.R.S. § 25-401(4).
Section 25-812 provides for a voluntary acknowledgement of paternity,
while § 25-814 explains when a man is presumed to be the father of a child.

¶9 Here, Mother is a legal parent of M.F. while J.P. is not. Mother
is the biological parent of M.F. and her parental rights have not been
terminated. See id. J.P. is M.F.’s putative biological father. See David C. v.
Alexis S., 240 Ariz. 53, ¶ 17 (2016) (“A putative father is a man who is or
claims to be the father of the child and whose paternity has not been
established.”). But the record contains no indication that J.P. is entitled to
a presumption of paternity under § 25-814, nor that he voluntarily
acknowledged paternity under § 25-812.3 Thus, J.P. was never M.F.’s legal
parent, leaving Mother as the only legal parent.

¶10 In this case, we must decide whether subsection (C)(2)
implicitly requires a non-parent who is seeking visitation to show that the
child has more than one legal parent. We start with the plain meaning of
the pertinent clause. See Hayes, 178 Ariz. at 268. That clause conditions
non-parent visitation on a finding that “the child’s legal parents are not
married to each other.” § 25-409(C)(2). It contains no language expressly
conditioning non-parental visitation on the existence of multiple legal
parents.

¶11 Mother contends, however, that the use of the plural
“parents” implies such a requirement. But the legislature has generally

3The parties do not appear to dispute that J.P. signed a voluntary

relinquishment in regards to M.F. However, the relinquishment is not part
of our record on appeal, and the parties do not discuss the relinquishment’s
content or whether it was filed pursuant to § 25-812(A).

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Opinion of the Court

instructed us to read “words in the plural number” so as to “include the
singular.” A.R.S. § 1-214(B). And we would require a far less obtuse cue in
the language of the statute to override that canon of construction here. For
these reasons, we decline to add requirements to the statute that the
legislature did not more clearly articulate. See AAA Cab Serv., Inc. v. Indus.
Comm’n, 213 Ariz. 342, ¶ 6 (App. 2006) (“This court cannot write a term into
the statute that the legislature did not include.”).

¶12 Furthermore, the legislature’s use of the plural “parents” in
the clause before us can be readily explained by mere grammatical
necessity: the clause refers to the status of marriage. That status, when it
exists, logically involves more than one person. Indeed, the clause would
be both grammatically incorrect and logically impossible if it had employed
the singular of parent in that context. See § 1-214(B) (implicitly
acknowledging challenges in use of singulars and plurals in drafting and
clarifying that each are intended to include other). Yet, the plain language
of the statute also clearly includes the circumstance presented here: M.F.
was born out of wedlock, and no marriage existed between any legal
“parents” at the time of the petition.

¶13 Nor can Mother’s reading be harmonized with the purpose of
subsection (C)(2) as conveyed by the entirety of § 25-409: to preclude
non-parental visitation when the child already possesses a legally
recognized two-parent family. See § 25-409(C); see also PNC Bank, N.A. v.
Coury, 257 Ariz. 25, ¶ 8 (App. 2024) (courts construe statutes and their
subsections as consistent and harmonious whole). Under this broader
purpose, children with only one legal parent, like M.F., would plainly
qualify for potential non-parental visitation upon a finding that such
visitation would be in their best interests.

¶14 Our reading is confirmed by the other statutory grounds for
non-parental visitation set forth in § 25-409(C). Each of those grounds
articulates circumstances under which children lack, or will lack, two legal
parents in their home. See § 25-409(C)(1), (3), and (4) (non-parental
visitation potentially available when one legal parent is deceased or missing
and, for non-parents with elevated status, when marriage dissolved or
petition for marriage dissolution pending).

¶15 Thus, M.F.’s one-parent status does not disqualify her from
receiving non-parental visitation. Rather, it places her at the heart of the
body of circumstances potentially justifying such visitation. Although we
have never squarely addressed the question presented here, this court has
previously assumed that § 25-409(C)(2) applies equally to children without

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Opinion of the Court

two legal parents. See Goodman v. Forsen, 239 Ariz. 110, ¶¶ 3-4, 9 (App. 2016)
(finding child eligible for non-parent visitation when mother never married
father whose parental rights had been severed), abrogated on other grounds
by In re Marriage of Friedman & Roels, 244 Ariz. 111, ¶ 19 (2018) (disavowing
Goodman “insofar as it purports to subject a nonparent to a heightened
burden of proof beyond that required” by other prior caselaw). Mother
contends that the provisions of § 25-409(C) address only those
circumstances where “there is a legal division of parental authority.” But
the very first provision of that subsection stands at odds with her theory.
Subsection (C)(1) allows for non-parental visitation when a parent is
“deceased or . . . missing”—circumstances that do not present any division
of parental authority. Although Mother suggests a division of legal
authority occurs when one of two legal parents die, we disagree because
upon that death, only one parent exists to have such authority.

¶16 In conclusion, the plain language of § 25-409(C)(2), the
manifest purpose conveyed by that language, and the broader statutory
context all demonstrate that the legislature intended to allow third-party
visitation petitions when a child is born out of wedlock and her legal
parents are unmarried. No language in the statute articulates any intention
by the legislature to exempt children with one legal parent from that
potential benefit. The trial court erred in concluding otherwise.

Disposition

¶17 For the foregoing reasons, we reverse the trial court’s rejection
of Stepfather’s petition for third-party visitation under § 25-409(C)(2).
Because the court included M.F. in its discussion of the factors under
§ 25-409(E) “in the event that the . . . lack of jurisdiction as to [M.F.] is
determined to be inappropriate,” and the parties did not dispute those
findings on appeal, we remand for the court to enter an order regarding
Stepfather’s third-party visitation with M.F., including making any further
findings required to enter such an order. As the prevailing party, Stepfather
is entitled to an award of costs in compliance with Rule 21, Ariz. R. Civ.
App. P. See Motley v. Simmons, 256 Ariz. 317, ¶ 20 (App. 2023).

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