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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

LOUIE ESPINOZA VERDUGO, Petitioner,

v.

THE HONORABLE TODD F. LANG, Judge of the SUPERIOR COURT OF 

THE STATE OF ARIZONA, in and for the County of MARICOPA, 

Respondent Judge,

ANMARIE AGUILAR, Real Party in Interest.

No. 1 CA-SA 23-0143 

Appeal from the Superior Court in Maricopa County

No. FC2022-007503

The Honorable Todd F. Lang, Judge

JURISDICTION ACCEPTED AND RELIEF GRANTED

COUNSEL

Cantor Law Group PLLC, Phoenix

By Caleb McKay

Counsel for Petitioner

Anmarie Aguilar, Phoenix

Real Party in Interest

FILED 8-24-2023
VERDUGO v. HON LANG/AGUILAR

Decision of the Court

2

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in 

which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.

H O W E, Judge:

¶1 In this special action proceeding, Louie Verdugo (“Father”) 

challenges the superior court’s temporary orders awarding sole legal 

decision-making authority and primary physical custody of his minor child 

(“Child”) to Child’s maternal aunt, Anmarie Aguilar (“Aunt”). 

¶2 Special action jurisdiction is appropriate here because Father 

has “no equally plain, speedy, and adequate remedy by appeal.” Ariz. R. P. 

Spec. Act. 1(a). Temporary orders are not directly appealable because they 

are “‘merely preparatory to a later proceeding’ that might affect the 

judgment or its enforcement.” Gutierrez v. Fox, 242 Ariz. 259, 264 ¶ 12 (App. 

2017) (citation omitted). We therefore accept special action jurisdiction, 

grant relief, and vacate the superior court’s temporary orders because the 

superior court lacked jurisdiction to enter them. 

FACTS AND PROCEDURAL HISTORY

¶3 Father and Genevieve Aguilar (“Mother”) are the biological 

parents of Child, born in 2007. According to Father’s petition, he never 

married Mother. Mother was Child’s primary caretaker. Father never 

petitioned the family court for decision-making authority or parenting 

time. He exercised parenting time with Child whenever Mother would 

allow him. When Mother did not allow him to exercise parenting time, he 

still communicated with Child through phone calls and text messages. 

Mother died in 2021. After Mother died, Child resided with Aunt. Father 

sought to have contact with Child but Aunt refused. Father then petitioned 

the family court for legal decision-making authority and parenting time. 

During the family court proceeding, the court appointed Child a Best 

Interests Attorney (“BIA”). The BIA then petitioned the juvenile court to

adjudicate Child dependent as to Father. Father moved to dismiss the 

dependency petition. 

¶4 The superior court held an evidentiary hearing. At the 

hearing, the court heard arguments from Father, Child’s guardian ad litem
VERDUGO v. HON LANG/AGUILAR

Decision of the Court

3

(“GAL”), the BIA, and the Department of Child Safety. Father argued that 

Child was not dependent as to him because he was able to provide food, 

clothing, shelter, supervision, and medical care for Child. He pointed to the

statement in the Department’s report that he was willing and able to parent 

Child and that safety concerns did not exist. He also pointed to the text 

messages between him and Child—which he asserted showed a close and 

caring relationship between them—as evidence that Child was not 

dependent as to him.

¶5 The BIA then argued that the dependency petition should not 

be dismissed because of safety concerns. The BIA proffered Child’s 

statements about Father “brush[ing] her bottom” and “reach[ing] into the 

shower and touch[ing] her while she was taking a shower.” The BIA also 

stated that the text messages between Father and Child were misleading

because Mother had encouraged Child to communicate with and be kind 

to Father so he would send them money. Finally, the BIA proffered that

Child would run away or suffer severe anxiety if placed with Father. The 

GAL also argued that the dependency petition should not be dismissed 

because of safety concerns. The GAL pointed out that Aunt had not filed a 

third-party-rights petition and if the dependency petition was dismissed,

“no one’s going to have legal authority over [Child], and that [was] very 

concerning.” The Department stated that it was requesting a guardianship 

and that it objected to dismissing the dependency petition.

¶6 After hearing the arguments, the court stated that, “I still 

haven’t heard one reason why [Father was] not a fit parent. All I’ve heard 

is it’s in [Child’s] best interest[s]. And I agree, but that is [a] Family Court

[issue]. That is not—that has nothing to do with a dependency.” It therefore 

granted Father’s motion. It then stated that it was taking temporary 

jurisdiction over the family court case and awarded Aunt sole legal 

decision-making authority over Child. The court found, under A.R.S. 

§ 25–409(B), that “it ha[d] heard clear and convincing evidence that legal 

decision making to Father [was] not consistent with [Child’s] best 

interests.” Under A.R.S. § 25–409(A)(2), and (4), it found that “it would be 

significantly detrimental” to Child to be placed with Father and that Mother 

was deceased.

¶7 After the hearing, the court, sua sponte, initiated a new family 

court case in which it listed Aunt as the petitioner. For this new family case, 

the court issued a minute entry memorializing the findings and rulings it 

made at the hearing on the motion to dismiss the dependency petition. It 

entered temporary orders awarding sole legal decision-making authority 

and primary physical custody to Aunt, and supervised visitation to Father. 
VERDUGO v. HON LANG/AGUILAR

Decision of the Court

4

The court’s order provided that the orders were to remain temporary until 

May 13, 2023. The orders would become final without further notice or 

action if neither party moved to modify the orders by May 13, 2023. On May 

12, 2023, Father moved to modify the superior court’s temporary orders. 

This special action followed. Father then moved to stay the proceedings in 

the superior court pending this special action. The court granted Father’s 

motion and stayed the proceedings.

1

DISCUSSION

¶8 Father argues that the superior court erred in entering 

temporary orders awarding sole legal decision-making authority and 

primary physical custody to Aunt. He contends that the court abused its

discretion in entering such orders without (1) a petition for third party

rights or a motion for temporary orders, and (2) a hearing. Aunt has not 

responded to Father’s petition, which may be considered a confession of 

error. See Gibbons v. Indus. Comm’n of Ariz., 197 Ariz. 108, 111 ¶ 8 (App. 

1999). But in our discretion, we will decide this case on its merits. See id. We 

review de novo whether the superior court had statutory or other authority 

to issue the temporary orders. Tanner v. Marwil in & for Cnty. of Maricopa, 

250 Ariz. 43, 45 ¶ 9 (App. 2020); Duckstein v. Wolf, 230 Ariz. 227, 231 ¶ 8 

(App. 2012).

¶9 A “petition” is “the initial pleading that begins a family law 

case.” Ariz. R. Fam. Law P. 23. A person other than a parent may petition 

for legal decision-making and parenting time. A.R.S. § 25–402(B)(2). A 

person seeking legal decision-making or parenting time, however, must do 

so “by filing a petition for third party rights under A.R.S. § 25–409.” Id. 

Thus, the superior court has jurisdiction to award legal decision-making

authority and parenting time to a third party only if that third party

petitions for third party rights under A.R.S. § 25–409. See A.R.S. § 25–402; 

Sheets v. Mead, 238 Ariz. 55, 57 ¶ 9 (App. 2015) (explaining that the superior 

court’s “power to conduct visitation and parenting time proceedings is 

provided by A.R.S. § 25–402”).

1 Father’s motions and the superior court’s order on the motion to stay 

the proceedings do not appear in our record. However, we take judicial 

notice of them because they are relevant to our special action jurisdiction. 

See Ariz. R. Evid. 201(b)(2) (court may judicially notice any fact that may be 

accurately determined “from sources whose accuracy cannot reasonably be 

questioned”); AU Enterprises Inc. v. Edwards, 248 Ariz. 109, 110 ¶ 3 n. 2 (App. 

2020).
VERDUGO v. HON LANG/AGUILAR

Decision of the Court

5

¶10 The superior court here erred in entering temporary orders,

awarding sole legal decision-making authority and primary physical 

custody to Aunt. The court initiated the family court case sua sponte, listed 

Aunt as petitioner, and entered the temporary orders. But Aunt never 

petitioned for third party rights under A.R.S. § 25–409. She never consented 

to or took any actions to be listed as petitioner. Aunt was not even present 

at the evidentiary hearing on Father’s motion to dismiss the dependency 

petition, when the court first pronounced its orders. The trial court 

therefore erred when it entered the temporary orders without first receiving 

a petition for third party rights.

¶11 The superior court found that awarding legal 

decision-making authority to Father was not in Child’s best interests. The 

court, however, cannot exercise jurisdiction over a case that was not 

properly initiated. The Arizona Legislature granted the superior court 

jurisdiction to conduct proceedings concerning legal decision-making and 

parenting time brought—through a petition—by “a person other than a 

parent.” A.R.S. § 25–402. Without such a petition, the court has no 

jurisdiction to award legal decision-making and parenting time over a child

to a third party. See Fenn v. Fenn, 174 Ariz. 84, 87 (App. 1993) (“Courts may 

do many things in the best interests of children, but they cannot advance 

such interests by exercising jurisdiction that they lack.”). The superior court 

therefore lacked jurisdiction and any orders it issued are void. Martin v. 

Martin, 182 Ariz. 11, 15 (App. 1994) (“A judgment or order is ‘void’ if the 

court entering it lacked jurisdiction.”). 

¶12 Even if the court had jurisdiction, the court’s orders would 

still not stand. “[A] parent is entitled to due process whenever his or her 

custodial rights to a child will be determined by a proceeding.” Smart v. 

Cantor, 117 Ariz. 539, 542 (1977) (citation omitted). Due process entitles “a 

party to notice and an opportunity to be heard at a meaningful time and in 

a meaningful manner, as well as a chance to offer evidence and confront 

adverse witnesses.” Cruz v. Garcia, 240 Ariz. 233, 236 ¶ 11 (App. 2016) 

(internal quotation and citation omitted). Due process “requires that when 

there are disputed issues of fact as to a child’s best interests, the court must 

allow the parties to present evidence before making its findings.” Id. at 237 

¶ 16 (internal quotation and citation omitted). 

¶13 Rule of Family Law Procedure (“Rule”) 47 establishes the 

procedural guidelines that protect parties’ due process rights. Rule 47 

provides that: (1) “[u]pon receiving a motion for temporary orders . . . , the 

court must schedule a resolution management conference unless the parties 

agree,” and (2) if “issues remain that require an evidentiary hearing 
VERDUGO v. HON LANG/AGUILAR

Decision of the Court

6

concerning temporary orders, the court must schedule an evidentiary 

hearing on those issues.” See Rule 47(c)(1). Rule 47 also (1) requires that the 

court set the conference or hearing no later than 30 days after the motion is 

filed, and (2) prohibits the court from resolving disputed issues of fact at 

any hearing other than an evidentiary hearing on the temporary orders, 

without the parties’ consent. Id.

¶14 Here, the court did not receive a motion for temporary orders

and did not follow any of Rule 47’s procedural requirements. The court 

failed to hold a management conference or an evidentiary hearing on the 

temporary orders. The court also decided disputed issues of facts at an 

evidentiary hearing on a different issue in a different case. The evidentiary 

hearing where the court entered the temporary orders was not an 

evidentiary hearing on the temporary orders; it was an evidentiary hearing 

on Father’s motion to dismiss the dependency petition. The court therefore 

violated Rule 47’s directives. By violating Rule 47’s directives, the court did 

not offer Father an opportunity to be heard in a meaningful time or manner

and thus violated his due process rights.

CONCLUSION

¶15 For the foregoing reasons, we accept jurisdiction, grant relief, 

and vacate the superior court’s temporary orders.