Smythe v. Stewart

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE In re the Matter of: KAREN SMYTHE, Petitioner/Appellee, v. CORRINE STEWART, Respondent/Appellant. No. 1 CA-CV 25-0862 FC FILED 11-04-2026 Appeal from the Superior Court in Maricopa County No. FC2024-090918 The Honorable Joanna Reihing, Judge Pro Tempore AFFIRMED COUNSEL Stuart & Blackwell, PLLC, Chandler By Cory A. Stuart Counsel for Petitioner/Appellee The Turner Law Firm, PLLC, Phoenix By Joshua Brian Turner Counsel for Respondent/Appellant  SMYTHE v. STEWART Decision of the Court MEMORANDUM DECISION Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Veronika Fabian and Judge Michael S. Catlett joined. C A T T A N I, Judge: ¶1 Corrine Stewart (“Mother”) appeals the superior court’s order granting paternal grandmother Karen Smythe (“Grandmother”) third- party visitation with Mother’s three minor children. Because the record supports the visitation decision, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Mother and Brandon Bullard (“Father”) have three children, born in 2018, 2022, and 2023. Father did not respond after being served by publication in this case. In March 2022, the two oldest children were placed in Grandmother’s care by the Arizona Department of Child Safety. They remained in Grandmother’s care until February 2023, when they were reunified with Mother. From February 2023 until October 2023, Grandmother visited with the three children once a week. ¶3 Mother thereafter refused visitation between the children and Grandmother. Mother expressed a concern about Grandmother’s husband and stated she would not allow visitation if he was present. Mother asserted that Grandmother’s husband “behaved inappropriately” with the children by “show[ing] a deep, unconventional interest in one of the [] children” and that he “lock[ed] himself in a room with the child and refus[ed to] release the child from the bedroom.” ¶4 Grandmother petitioned for visitation in March 2024. See A.R.S. § 25-409. She requested daytime visitation with the children for 8– 10 hours twice per month. Mother opposed any visitation. ¶5 The court held a trial in September 2025, and after expressly acknowledging that Mother’s wishes were to be given “special weight,” it granted visitation to Grandmother twice per month, with the condition that Grandmother be present for the entire visit and not leave the children with anyone else without Mother’s consent. Because Grandmother had not seen the children for some time, the court ordered a gradual plan, with visitation two Saturdays per month for three hours for the first two months, then two Saturdays per month for eight hours. 2  SMYTHE v. STEWART Decision of the Court ¶6 Mother timely appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1). DISCUSSION ¶7 Mother asserts that the superior court abused its discretion by granting visitation to Grandmother over her objection. Mother argues that the court failed to properly accord deferential weight to her wishes as required under A.R.S. § 25-409(E). Mother also asserts that the superior court abused its discretion by denying her request for attorney’s fees. I. Third-Party Visitation. ¶8 We review the superior court’s award of third-party visitation for an abuse of discretion, viewing the evidence in the light most favorable to upholding the superior court’s ruling. In re Marriage of Friedman, 244 Ariz. 111, 120, ¶¶ 36, 41 (2018). An abuse of discretion occurs “when the record is ‘devoid of competent evidence to support’ the court’s decision.” Woyton v. Ward, 247 Ariz. 529, 531, ¶ 5 (App. 2019) (quoting Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999)). We review statutory interpretation and constitutional law issues de novo. Douros v. Morse, 258 Ariz. 546, 550, ¶ 13 (App. 2024). ¶9 Parents have a fundamental right to make decisions regarding the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 66 (2000). Third-party visitation over a parent’s objection may only be granted if such visitation is in the child’s best interests. A.R.S. § 25- 409(C). In making that assessment, the court must give “special weight” to a fit parent’s opinion of what is best for the child, A.R.S. § 25-409(E), and it must afford a parent’s voluntary agreement to some visitation (even if not as much as the grandparent desires) “significant weight.” McGovern v. McGovern, 201 Ariz. 172, 177–78, ¶ 18 (App. 2001). The court considers several factors in assessing the child’s best interests, including: the historical relationship of the child and the person seeking visitation, the motivation of both parties, the quantity of visitation requested, and any potential adverse impact on the child’s normal activities. A.R.S. § 25-409(E). Thus, a person seeking third-party visitation must show by clear and convincing evidence that the visitation is in the child’s best interests, and the court must find and explain why the fit parent’s best-interests determination should not be accepted. Flanigan v. Kittelson, 260 Ariz. 498, 502, ¶ 2 (App. 2025). ¶10 Mother argues that the court erred in part because Grandmother did not have an “in loco parentis” (in the place of a parent) relationship with the youngest child. But such a relationship is necessary 3  SMYTHE v. STEWART Decision of the Court only if the third-party seeks legal decision-making or placement of the child. A.R.S. § 25-409(A)(1). Grandmother sought only visitation, which is assessed simply based on the best interests of the child, with a fit parent’s decision having “special weight.” A.R.S. § 25-409(C), (E). ¶11 And here, the evidence supports the superior court’s discretionary determination that awarding limited visitation for Grandmother is in the children’s best interests. Grandmother took care of the two older children for 10 months. After the children were returned to Mother’s care, Grandmother visited the two older children nearly every weekend. Grandmother had a strong, bonded relationship with the children, and the children exercised quality time at Grandmother’s home, spent meals together, and celebrated birthdays and holidays. ¶12 Mother’s objection to visitation was based primarily on concerns regarding Grandmother’s husband, with Mother stating that she was concerned he had acted inappropriately with one of the children. But her supporting evidence was a video of the child in her crib crying and repeatedly saying “Grandpa,” which Grandmother addressed by testifying that her husband was asleep, heard the child crying while the child was taking a nap, and took her out of the crib. Mother did not dispute Grandmother’s recollection of this incident. Mother also presented a home study from the 1980s in which Grandmother was found to not be a suitable placement for children based on a self-disclosed incident, but Grandmother testified the home study did not accurately reflect the incident. Finally, Mother testified that she previously agreed that Grandmother could spend time with the children if Grandmother’s husband was not present. Mother acknowledged that on one occasion, she allowed Grandmother to visit with the children, even knowing that Grandmother’s husband would be there. ¶13 The superior court issued a detailed order addressing the relevant statutory factors and reiterating the importance of deference to a fit parent’s wishes. The court considered evidence presented by Mother regarding Grandmother’s husband but concluded that it did not establish that he had acted inappropriately with the children. The court did not ignore Mother’s concerns, however, and restricted Grandmother’s visitation, making clear that she is to be present with the children the entire duration of the visits and that the children are not to be left with any other person without Mother’s consent. Additionally, although the court recognized that Grandmother’s relationship with the youngest child was not as bonded as with the older children, the court reasonably concluded that separating him from the other children would be problematic. 4  SMYTHE v. STEWART Decision of the Court ¶14 In sum, the superior court’s detailed minute entry supports the court’s discretionary decision to grant limited visitation to Grandmother. The order recognizes Mother’s concerns and places reasonable restrictions on visitation, while noting that changes may be necessary as time passes and the children’s schedules become more complicated. Thus, the court did not abuse its discretion by awarding visitation after affording “special weight” to Mother’s wishes. II. Attorney’s Fees in Superior Court. ¶15 Mother argues that the superior court erred by denying her request for attorney’s fees. We review this decision for an abuse of discretion. Ferrill v. Ferrill, 253 Ariz. 393, 396, ¶ 8 (App. 2022). ¶16 In superior court, Mother requested attorney’s fees under A.R.S. § 25-324(A) based on a significant financial disparity. Under § 25- 324(A), the court may award reasonable attorney’s fees after considering the financial resources of both parties and the reasonableness of each party’s position. Here, although the court acknowledged Grandmother’s greater financial resources, it determined Mother had taken unreasonable positions by opposing any visitation based on groundless assertions of danger. Balancing and evaluating these factors falls squarely within the superior court’s discretion. Ferrill, 253 Ariz. at 399, ¶ 25. Mother has not established that the superior court abused its discretion here. III. Attorney’s Fees on Appeal. ¶17 Mother also requests attorney’s fees on appeal under A.R.S. § 25-324. After considering the relevant factors, we deny her request. CONCLUSION ¶18 We affirm. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 5