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THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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:

DIANE CAROL ATKISON, Petitioner/Appellant,

v.

ROBERT ANTHONY SHAFER, Respondent/Appellee.

No. 1 CA-CV 22-0004 FC

Appeal from the Superior Court in Maricopa County

No. FC2019-007092

The Honorable Mark H. Brain, Judge

AFFIRMED IN PART/REMANDED

COUNSEL

Gillespie, Shields, Goldfarb & Taylor, Phoenix

By Mark A. Shields (argued), David L. Goldfarb

Counsel for Petitioner/Appellant

Curry, Pearson & Wooten, PLC, Phoenix

By Daniel S. Riley1

Counsel for Respondent/Appellee

1 This court thanks Mr. Riley for his pro bono service.

FILED 12-29-2022
ATKISON v. SHAFER

Decision of the Court

2

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding 

Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M c M U R D I E, Judge:

¶1 Diane Carol Atkison (“Grandmother”) appeals from the 

superior court’s denial of her petition for in loco parentis legal 

decision-making and her motion to amend. We find no reversible error and 

affirm the court’s parenting determination. We remand for the court to 

determine the child support award during the interim period.

FACTS AND PROCEDURAL BACKGROUND

¶2 Liam2 is Grandmother’s maternal grandson, and his father is 

Robert Anthony Shafer (“Father”). Liam’s mother (“Mother”) and Father 

had a turbulent and volatile relationship. In 2016, Father petitioned for legal 

decision-making and parenting time. Grandmother intervened in Father’s

case (Maricopa County cause number FC 2016-008657), petitioning for in 

loco parentis rights. The court appointed a best-interests attorney for the 

child. The best-interests attorney began a dependency action against 

Mother and Father. Eventually, the dependency petition, Father’s legal 

decision-making petition, and Grandmother’s in loco parentis petition were 

dismissed without the entry of a parenting order.

¶3 Father relocated to California. Father took Liam to California 

for a short period, but Liam returned and remained with Mother in 

Arizona. In August 2019, Mother was hospitalized following a cardiac 

arrest. She died two weeks later.

¶4 Before Mother’s death, Grandmother again petitioned for in 

loco parentis decision-making under A.R.S. § 25-409, alleging that Father had 

a significant history of domestic violence and drug abuse. She asked the 

court to grant her legal decision-making and parenting time for Liam and

order Father to undergo drug testing. She also moved for temporary orders.

2 We use a pseudonym to protect the child’s identity.
ATKISON v. SHAFER

Decision of the Court

3

¶5 In September 2019, after an evidentiary hearing, the court 

issued temporary orders that designated Grandmother as the sole legal

decision-maker with physical custody of Liam but allowed Father 

supervised parenting time. The court also ordered Father to submit to 

random drug testing at least eight to ten times per month. The court warned 

Father that each failure to participate might be considered a failed test, and 

he should disclose any prescriptions that could lead to a positive test result. 

Finally, the court appointed a behavioral health professional to conduct a 

comprehensive family evaluation.

¶6 In April 2021, the parties proceeded to trial. They presented 

evidence that Father completed nearly 30 drug tests during the previous 19

months, four of which were positive. The first positive result occurred in 

September 2019, when Father tested positive for amphetamines, 

benzodiazepines, cannabinoids, and fentanyl. He began an inpatient 

treatment program just over a month later.

¶7 Yet Father tested positive for cocaine, fentanyl, and 

methadone in March 2020. He testified that this was the only hair follicle 

test conducted by taking a sample from his leg instead of his chest or 

armpit, which may have had a longer detection window because he 

sometimes trimmed his body hair but never his legs. He also presented a 

letter from an addiction psychologist stating that different body areas may 

yield different results. Father completed three negative urinalysis tests and 

a negative hair follicle test two weeks following the positive hair follicle 

test.

¶8 In May and July 2020, Father tested positive for 

amphetamines. As for these tests, he testified that he had a prescription

amphetamine medication that he had since stopped taking. Father added

that after completing the inpatient treatment program, he saw a physician 

for monthly urine tests and a prescription opioid antagonist. He maintained 

that he had been clean and sober.

¶9 Grandmother presented evidence of Father’s domestic 

violence. In November 2017, Father was arrested for assaulting Mother. He 

was released but ordered to have no contact with Mother. But a week later,

police responded to a call from Mother’s neighbor, who could hear Mother 

and Father fighting inside Mother’s apartment. The responding officer 

concluded the argument was only verbal but arrested Father for violating 

the no-contact order.
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4

¶10 Grandmother presented text messages from April 2018

between Mother and Mother’s brother, in which Mother stated Father

struck her in the head and knocked her out eight times. Grandmother 

alleged that Father assaulted Mother again in May 2018, leading police to 

arrest both Mother and Father for domestic violence.

¶11 Grandmother presented photos of Mother’s injuries, 

including when Father allegedly broke Mother’s hand in July 2018.

Grandmother offered text messages between Mother and Father, in which 

Mother accused Father of tackling and belittling her in front of Liam, to 

which Father replied, “Everything you do and say in front [of] him is 

perfectly ok but when [I] do [it it’s] the end [of] the world.” Grandmother 

testified that this was Father’s admission “to doing it in front of [Liam].”

¶12 The superior court denied Grandmother’s in loco parentis

petition. The court began its analysis by stating that a grandparent may be 

awarded third-party rights if it finds that all the requirements of A.R.S. 

§ 25-409(A) are met. The court acknowledged the presumption that it is in 

a child’s best interests to remain with the natural parent. The court 

determined that the only disputed element under the statute was whether 

it would be significantly detrimental to the child to remain in Father’s care.

¶13 Before proceeding to the best-interests analysis, the court 

rejected Grandmother’s arguments under the domestic violence provisions 

of A.R.S. § 25-403.03. The court “simply disagree[d]” with Grandmother 

that domestic violence was relevant to the case. The court recognized that 

A.R.S. § 25-403.03(B) requires courts to “consider evidence of domestic 

violence as being contrary to the best interests of the child” and continued:

Of course it is. But the goal is to keep the child from being 

exposed to domestic violence, not to penalize a parent who 

once engaged in it but cannot anymore. Accordingly, the 

Court concludes that father’s history of domestic violence 

with mother (which was sometime[s] mutual) is not pertinent 

to the current dispute.

¶14 The court then analyzed the best-interests factors under 

A.R.S. § 25-403. The court found that Liam had good relationships with 

Grandmother, Father, and his extended family. It further found that Liam

had adjusted well to living with Grandmother in Phoenix. The court added 

that Liam, who was five years old at the time, was too young for his wishes 

to be considered. And the court found that Liam and Grandmother were in 
ATKISON v. SHAFER

Decision of the Court

5

good mental and physical health, as was Father, except for Father’s prior 

drug abuse history.

¶15 The court then addressed Father’s drug use, finding that 

Father had “undoubtedly” abused various drugs. The court acknowledged 

that Father tested positive in March 2020 but noted that he submitted 

several negative drug tests since January 2020. The court also recognized 

Grandmother’s criticism of Father’s compliance with the original 

drug-testing order and her concern that Father could have used fentanyl 

without detection. But “[h]aving studied the matter, the Court conclude[d] 

that father ha[d] made a good faith effort at complying with the Court’s 

intended drug testing regimen[].”

¶16 The court also found “that the testing Father completed was 

reasonably calculated to ensur[e] that he was not using illicit substances.” 

Finally, the court found credible Liam’s paternal grandfather’s testimony 

that Father’s behavior and demeanor had recently improved and were

“inconsistent with continued drug use.”

¶17 In conclusion, the court found “that it would not be 

significantly detrimental to [Liam] to be placed in the care of his father” and 

denied Grandmother’s petition.

¶18 Grandmother moved to amend the judgment, asking the 

court to grant her visitation and order Father to continue drug testing. She

asserted that Father had agreed to both parenting requests in his pretrial 

statement. The court denied the motion.

¶19 First, the court found that the visitation issue was not tried by 

consent. The court explained that, although Father stated pretrial that 

Grandmother should have visitation rights, Father also noted that 

Grandmother did not request visitation, even as an alternative theory. 

Second, the court declined to order Father to continue drug testing because

the court lacked the authority to impose such a requirement after denying 

a third-party petition under A.R.S. § 25-409.

¶20 Grandmother appealed, and we have jurisdiction under 

A.R.S. § 12-2101(A)(1) and (2).

DISCUSSION

¶21 We review an award of legal decision-making and parenting 

time for an abuse of discretion. Olesen v. Daniel, 251 Ariz. 25, 29, ¶ 14 (App. 

2021). A court abuses its discretion if it commits an error of law when
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Decision of the Court

6

reaching a discretionary decision or if the record does not support its 

decision. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). We accept the 

court’s factual findings unless clearly erroneous but review legal 

conclusions de novo. Id.

¶22 Grandmother raises several arguments for reversal, and we 

will address each in turn. But we must first address the court’s application 

of the statutory requirements for third-party petitions, an issue not raised 

by either party. The court’s analysis began with a statement that third-party 

rights may be awarded upon a showing of the four elements under A.R.S. 

§ 25-409(A). But A.R.S. § 25-409(A) provides that “[t]he court shall 

summarily deny a petition unless it finds that the petitioner’s initial pleading 

establishes” the four elements. A.R.S. § 25-409(A) (emphasis added). As a 

result, the statute sets forth a pleading standard. See Chapman v. Hopkins, 

243 Ariz. 236, 240, ¶ 16 (App. 2017). Only after determining that the petition 

establishes each requirement will the court reach the merits. Id. at ¶ 17.

¶23 The merits standard is instead outlined in A.R.S. § 25-409(B), 

which provides that there “is a rebuttable presumption that awarding legal 

decision-making to a legal parent serves the child’s best interests.” And the 

presumption may be rebutted only “by clear and convincing evidence that 

awarding legal decision-making to a legal parent is not consistent with the 

child’s best interests.” A.R.S. § 25-409(B). When making this determination, 

the court should consider the best-interests factors enumerated in A.R.S. 

§ 25-403(A). Chapman, 243 Ariz. at 241, ¶ 18. “Legal parent” means a 

biological or adoptive parent whose parental rights have not been 

terminated. A.R.S. § 25-401(4). And the parties do not dispute that Father is 

Liam’s legal parent.

¶24 Here, the court’s order appears to use A.R.S. § 25-409(A) as 

the framework for analyzing the merits, which was improper. But the court 

did not commit reversible error in this regard because, substantively, the 

court considered the best-interests factors under A.R.S. § 25-403(A) when

reaching its conclusion. See Ariz. R. Fam. Law P. 86 (“At every stage of the 

proceeding, the court must disregard all errors and defects that do not affect 

any party’s substantial rights.”); Wisniewski v. Dolecka, 251 Ariz. 240, 242, 

¶ 7 (App. 2021).

A. The Superior Court Made Sufficient Findings Under A.R.S. 

§ 25-403 Regarding the Ultimate Facts in Dispute.

¶25 Grandmother first argues that the court failed to make 

specific best-interests findings on the record. As mentioned, the court must 
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Decision of the Court

7

evaluate the child’s best interests when ruling on a third-party petition 

under A.R.S. § 25-409. See Chapman, 243 Ariz. at 241, ¶ 18; Downs v. Scheffler, 

206 Ariz. 496, 500, ¶¶ 12–14 (App. 2003). In doing so, the court must

consider the best-interests factors enumerated in A.R.S. § 25-403(A). 

Chapman, 243 Ariz. at 241, ¶ 18. And when considering the best-interests 

factors, “the court shall make specific findings on the record.” A.R.S. 

§ 25-403(B). Grandmother asserts that the court’s order lacks the requisite

findings.

¶26 The primary purpose for requiring a court to make express 

findings of fact and conclusions of law is to allow the appellate court to 

determine exactly what issues were decided and whether the lower court 

correctly applied the law. Francine C. v. Dep’t of Child Safety, 249 Ariz. 289, 

295–96, ¶ 13 (App. 2020); Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 

240, ¶ 24. Findings also serve other important purposes, “including 

prompt[ing] judges to consider issues more carefully because they are 

required to state not only the end result of their inquiry, but the process by 

which they reached it.” Logan B. v. Dep’t of Child Safety, 244 Ariz. 532, 538, 

¶ 18 (App. 2018) (alteration in original) (quotation marks omitted) (quoting

Miller v. Bd. of Supervisors, 175 Ariz. 296, 299 (1993)). To survive a challenge 

to the adequacy of the superior court’s findings, “[i]t must be clear [from 

the findings] how the court actually did arrive at its conclusions.” Kelsey v.

Kelsey, 186 Ariz. 49, 51 (App. 1996) (alteration in original) (quoting Elliott v.

Elliott, 165 Ariz. 128, 135 (App. 1990)).

¶27 A court does not have to detail each fact that supports its 

ruling, Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 451–52, ¶ 19 (App. 

2007), but its findings must include the “ultimate facts,” Ruben M., 230 Ariz. 

at 241, ¶ 25. “[U]ltimate facts are at least the essential and determinative 

facts on which the conclusion was reached. They are the controlling facts, 

without which the court cannot correctly apply the law in resolving the 

disputed issues in the case.” Logan B., 244 Ariz. at 537, ¶ 15 (alteration in 

original) (quotation marks omitted) (quoting Miller, 175 Ariz. at 300); Ruben

M., 230 Ariz. at 241, ¶ 25 (“Findings must include ‘all of the “ultimate” 

facts—that is, those necessary to resolve the disputed issues.’” (quoting

Elliott, 165 Ariz. at 132)). We review the sufficiency of findings of fact de

novo as a mixed question of fact and law. Francine C., 249 Ariz. at 296, ¶ 14.

¶28 The superior court’s order contains the required findings. The 

court began by stating, “As to best interests, the factors of A.R.S. § 25-403 

are instructive, and the Court will discuss the evidence surrounding the 

applicable factors.” The court then made findings about the relationship 

and interactions between Liam and the parties, Liam’s adjustment to life at 
ATKISON v. SHAFER

Decision of the Court

8

home and in school, whether Liam was of suitable age to have his wishes 

considered, and the physical and mental health of the parties. The court also 

discussed Father’s history of domestic violence and drug abuse. Although 

the analysis takes on an unenumerated narrative form, it tracks A.R.S. 

§ 25-403 and addresses the relevant factors under the statute. See also Downs,

206 Ariz. at 500, ¶¶ 12–14 (Not all factors apply to third-party petitions.).

And Grandmother identifies no rule or law that governs how courts must

format a best-interests finding. We thus conclude that the court made the 

required findings.

B. The Superior Court Did Not Commit Reversible Error in its 

Domestic Violence Findings.

¶29 Grandmother argues that the superior court erred by failing 

to apply the presumption outlined in A.R.S. § 25-403.03(D) and finding that 

Father’s history of domestic violence is “not pertinent” to the dispute.

¶30 Arizona Revised Statutes Section 25-403.03(D) creates a 

rebuttable presumption against domestic violence perpetrators:

If the court determines that a parent who is seeking sole or 

joint legal decision-making has committed an act of domestic 

violence against the other parent, there is a rebuttable 

presumption that an award of sole or joint legal

decision-making to the parent who committed the act of 

domestic violence is contrary to the child’s best interests. This 

presumption does not apply if both parents have committed 

an act of domestic violence.

A.R.S. § 25-403.03(D). Grandmother argues the court erred by failing to 

apply this presumption against Father because Father “was seeking and 

was granted legal decision-making in this case” and has committed 

multiple acts of domestic violence against Mother.

¶31 Grandmother’s argument fails, and the presumption does not 

apply for two reasons. First, Grandmother misstates the case’s procedural 

posture because Father was not “seeking” legal decision-making. Instead, 

Grandmother sought legal decision-making as a third-party petitioner 

under A.R.S. § 25-409. The burden was on her to show “by clear and 

convincing evidence that awarding legal decision-making to [Father was] 

not consistent with the child’s best interests.” A.R.S. § 25-409(B).

Grandmother cites Olesen v. Daniel, 251 Ariz. 25 (App. 2021) to show that 

this presumption applies in third-party cases. Grandmother is mistaken.
ATKISON v. SHAFER

Decision of the Court

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¶32 In Olesen, the parents divorced, and the mother was awarded 

sole legal decision-making. Olesen, 251 Ariz. at 27, ¶¶ 2, 4. Thus, when the 

father later petitioned to modify the parenting plan, and the grandparents 

intervened, the father was still “a parent who [was] seeking sole or joint 

legal decision-making” under A.R.S. § 25-403.03(D). See Olesen, 251 Ariz. at 

27–29, ¶¶ 6, 13. Here, no parent was seeking legal decision-making. As a 

result, the presumption under A.R.S. § 25-403.03(D) did not apply.

¶33 Second, Grandmother ignores the court’s finding that Mother 

also committed an act of domestic violence. The presumption under A.R.S. 

§ 25-403.03(D) does not apply “if both parents have committed an act of 

domestic violence.” Here, the court found that “father’s history of domestic 

violence with mother . . . was sometime[s] mutual.” Although 

Grandmother contends that Father is the only parent with a history of 

domestic violence, the court’s finding is supported by the testimony that 

police arrested both Mother and Father for domestic violence in May 2018. 

Again, the presumption under A.R.S. § 25-403.03(D) does not apply.

¶34 Grandmother also argues that the court erred by concluding 

that domestic violence was “not pertinent” to the case, especially because 

the court found Father engaged in domestic violence but “cannot 

anymore.”

¶35 When analyzing the child’s best interests, the court should 

consider “[w]hether there has been domestic violence or child abuse 

pursuant to § 25-403.03.” A.R.S. § 25-403(A)(8). In doing so, the court must

give domestic violence substantial consideration:

The court shall consider evidence of domestic violence as 

being contrary to the best interests of the child. The court shall 

consider the safety and well-being of the child and of the 

victim of the act of domestic violence to be of primary 

importance. The court shall consider a perpetrator’s history of 

causing or threatening to cause physical harm to another 

person.

A.R.S. § 25-403.03(B); see Christopher K. v. Markaa S., 233 Ariz. 297, 300, ¶ 16 

(App. 2013). Given the statute’s mandate, it would be error to ignore

Father’s uncontroverted domestic violence history. That said, the court here 

did not summarily disregard the evidence. Instead, it acknowledged that 

domestic violence generally conflicts with the child’s best interests but

concluded that “the goal is to keep the child from being exposed to 

domestic violence, not to penalize a parent who once engaged in it but 
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Decision of the Court

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cannot anymore.” Thus, despite the court’s language that Father’s domestic 

violence was “not pertinent,” it is clear from the order that the court 

considered Father’s prior acts of domestic violence as required by A.R.S. 

§§ 25-403(A)(8) and 25-403.03(B).

¶36 That said, we agree with Grandmother that there is no 

support for the court’s conclusion that Father “cannot” commit acts of 

domestic violence anymore. Still, the record shows Father committed 

domestic violence acts only against Mother, and the last incident occurred 

in 2018.3 Mother has since died, and Father now lives with his girlfriend 

and her daughter. Grandmother did not present evidence that Father has 

engaged in domestic violence against either of them. And the only evidence 

that any domestic violence occurred in front of Liam is an ambiguous text 

from Father to Mother and Grandmother’s testimony that Father admitted 

in the text “to doing it in front of [Liam].” As a result, there is record 

evidence to support findings that Liam has not been exposed to domestic 

violence, and Father’s abstinence from domestic violence since 2018 is likely 

to continue.

¶37 Of course, we may not infer findings from the court’s ultimate 

decision. DeLuna, 247 Ariz. at 424, ¶ 16. And when a court’s order lacks

findings, the order must be reversed. See, e.g., In re Marriage of Diezsi, 201 

Ariz. 524, 526, ¶ 5, (App. 2002); Downs, 206 Ariz. at 501, ¶ 19; Christopher K., 

233 Ariz. at 301, ¶ 19; DeLuna, 247 Ariz. at 424–25, ¶¶ 16–19. But the court’s 

order here does not lack findings. The court’s order weighed the child’s lack 

of exposure to domestic violence and the death of Father’s only victim. 

Thus, the court’s findings are sufficient for us “to determine that the court 

considered the child’s best interests.” See Diezsi, 201 Ariz. at 526, ¶ 5; see also 

O’Hair v. O’Hair, 109 Ariz. 236, 240 (1973) (The appellate inquiry is 

“whether the trial court had before it evidence which might reasonably 

support its action viewed in the light most favorable to sustaining the 

findings.”). Thus, although the order was inartful at times about Father’s 

domestic violence, we find no reversible error in the court’s conclusion. See

Ariz. R. Fam. Law P. 86.

3 At oral argument, Grandmother’s counsel contended the last 

incident of domestic violence occurred in August 2019 and cited Exhibit 50. 

But when trial counsel offered Exhibit 50 into evidence, the superior court 

deferred admission until after it had reviewed the exhibit. The court never 

admitted Exhibit 50, and it is not in the record on appeal.
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C. The Superior Court Did Not Abuse Its Discretion by Concluding 

that Father Rebutted the Substance Abuse Presumption Under A.R.S. 

§ 25-403.04.

¶38 Grandmother also argues that the court erred by concluding

that Father rebutted the presumption under A.R.S. § 25-403.04. Section 

25-403.04(A) creates a rebuttable presumption that it is not in the child’s 

best interests to award legal decision-making to a parent who has abused 

drugs within a year of the petition’s filing. To determine whether the parent 

has rebutted that presumption, the court must consider the lack of drug 

offenses, the results of random drug tests over six months, and the results 

of drug screenings. A.R.S. § 25-403.04(B). It is uncontested that Father 

abused drugs until as recently as late 2019, and thus the presumption 

applies against him.

¶39 In September 2019, the court ordered Father to submit to 

random drug testing at least eight to ten times per month. The parties 

proceeded to trial in April 2021. Father should have taken around 150 to 

190 random drug tests before the trial under the order. But at the trial, he 

submitted evidence of fewer than 30 completed drug tests, four of which 

were positive. Only one test appears to have been random. Father skirted

the court’s drug testing order. But the court found that Father “made a good 

faith effort at complying with the Court’s intended drug testing regimen[]”

and “that the testing Father completed was reasonably calculated to 

ensur[e] that he was not using illicit substances.” The court ultimately 

found that Father had rebutted the presumption against him.

¶40 Grandmother argues that the court abused its discretion by 

“dismissing” Father’s drug use and failure to comply with the court’s order. 

But she cites no authority supporting the claim that Father’s failure to 

comply with the court’s drug-testing order precluded him from rebutting

the statutory presumption. The question on appeal is not whether Father 

strictly adhered to the court’s drug-testing order but whether there is 

support in the record for the court’s conclusion that Father rebutted the 

presumption. See DeLuna, 247 Ariz. at 423, ¶ 9.

¶41 We find that there is sufficient record support. Although 

Father only tested twice in 2019, the court gave weight to the more recent

“string of drug tests . . . commencing in January 2020 which [were]

negative” with some exceptions. And as for the exceptions, Father provided 

a plausible explanation for each of the three positive tests since January 2020

that the court could have found credible. Likewise, the court accepted 

testimony that Father’s behavior and demeanor had improved and were
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Decision of the Court

12

“inconsistent with continued drug use.” So the court did not abuse its 

discretion by concluding that Father rebutted the presumption under A.R.S. 

§ 25-403.04.

D. The Superior Court Did Not Abuse Its Discretion by Denying 

Grandmother’s Petition.

¶42 Grandmother argues that the court abused its discretion by 

denying her petition because it erred in its analysis of the domestic-violence 

and drug-abuse presumptions. As discussed, the court did not err by 

declining to apply the domestic-violence presumption or finding that 

Father had rebutted the drug-abuse presumption. But Grandmother urges 

us to hold under A.R.S. § 25-409(B) that “[a]s a matter of law, it was clearly 

contrary to the child’s best interests to be placed in the physical custody of 

a domestic abuser and a drug addict.”

¶43 Section 25-409(B) creates a rebuttable presumption that it is in 

the child’s best interests to remain in the care of a legal parent. And it 

explicitly burdens the third-party petitioner to rebut that presumption with

clear and convincing evidence. A.R.S. § 25-409(B). Having established that 

the court did not err under A.R.S. §§ 25-403.03 and -403.04, the burden fell 

on Grandmother to show by clear and convincing evidence that the 

best-interests factors under A.R.S. § 25-403(A) weighed against placing 

Liam in Father’s care. A.R.S. § 25-409(B).

¶44 The superior court held that Grandmother failed to meet her

burden. We cannot hold that Grandmother met her burden simply because 

there is evidence of Father’s past drug abuse and domestic violence. A

parent’s health and history of domestic violence are two factors the court 

should consider when analyzing the child’s best interests. A.R.S. 

§ 25-403(A). As stated, the court did not abuse its discretion by generally 

finding that the best-interests factors favored placing Liam in Father’s care. 

We thus conclude that Grandmother failed to meet her burden under A.R.S. 

§ 25-409(B), and we affirm the court’s denial of her petition.

E. The Superior Court Did Not Err by Declining to Order Continued 

Drug Testing or Visitation.

¶45 After the court denied her petition, Grandmother moved to 

amend the judgment. See Ariz. R. Fam. Law P. 83. She asked the court to 

order Father to continue drug testing and grant Grandmother visitation. 

The court denied the motion, finding that the court lacked the authority to 

order continued drug testing and that the parties had not litigated the 

visitation issue.
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Decision of the Court

13

¶46 Grandmother argues that the court erred by concluding it 

lacked the authority to order continued drug testing. She claims that the 

source arises out of Arizona Rule of Family Law Procedure 95, which 

provides that “[i]n a case involving legal decision-making or parenting 

time, the court may order substance abuse screening and random testing of 

a party” if that party has abused drugs. Father counters that Rule 95 applies 

when there is “a case involving legal decision-making or parenting time,”

and any authority derived from Rule 95 terminated upon the denial of 

Grandmother’s petition.

¶47 We agree with Father that once the court denied 

Grandmother’s petition, there was no longer “a case involving legal 

decision-making or parenting time.” Moreover, Rule 95 is a “procedural 

rule and cannot enlarge the court’s authority beyond that granted by 

statute.” Paul E. v. Courtney F., 246 Ariz. 388, 398, ¶ 40 (2019). Grandmother 

fails to identify an applicable statute allowing the court to order continued 

drug testing after it denied her petition. The court thus did not err by 

declining to order ongoing drug testing.

¶48 Grandmother also argues that the court erred by denying her 

visitation. Grandmother requested “in loco parentis custody” in her petition. 

She did not request visitation. Her argument is based partly on Father’s 

pretrial statement, in which he stated he was “agreeable” to a visitation 

schedule recommended by the behavioral health professional. But Father

also noted that Grandmother did not ask for visitation, “even as an 

alternative theory.” The pretrial statement also contains a section for 

stipulations or agreements of the parties, under which Father stated, 

“None.”

¶49 Grandmother also relies on Father’s trial testimony that the 

parties had “already agreed” to the visitation schedule set up by the 

behavioral health professional. Father gave the testimony in response to a 

question about how he could assure the court that he would not cut off 

Grandmother from Liam should the court order that Liam stay in Father’s

care. Father did not agree to court-ordered visitation.

¶50 Although it appears the parties have discussed and perhaps 

even agreed to visitation outside the scope of the litigation, we ultimately 

agree with the superior court that the visitation issue was not litigated. The 

court, therefore, did not abuse its discretion by declining to award 

visitation.
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Decision of the Court

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F. The Superior Court Erred by Declining to Determine Child 

Support for the Interim Period.

¶51 Finally, Grandmother argues the court erred by failing to 

determine child support when it issued the temporary orders placing Liam 

in her care.

¶52 In her pretrial statement, Grandmother asked the court to 

enter a judgment for child support when Liam was in her care during the 

litigation. The court’s order denying Grandmother’s petition did not 

address the interim child-support claim. This was error.

¶53 Under A.R.S. § 25-403.09, the court must determine the child 

support amount when entering “any parenting time order” under the legal 

decision-making and parenting time statutes. The statutory mandate

includes a temporary order such as the court issued here. See A.R.S. 

§ 25-404. So the court should have determined child support when issuing 

the interim orders.

¶54 Section XII(C) of the guidelines states:

If a child lives with a third-party caregiver under a court 

order, an administrative placement by a state agency, or other 

color of authority, the third-party caregiver is entitled to 

receive child support payments from each parent on the 

child’s behalf. When calculating the amount of child support 

to be awarded to a third-party caregiver, the third-party 

caregiver’s expenses are considered under Section III.B.3 

through III.B.6 above, but not the third-party caregiver’s 

income.

A.R.S. § 25-320.

¶55 At the hearing, the court had Father’s income information and 

the other information necessary to determine his child support obligation 

to Grandmother for taking care of Liam during the interim period. If the 

court intended to deviate from the guidelines to enter a zero-child-support 

award, it must state the reasons on the record. See A.R.S. § 25-320(D);

Milinovich v. Womack, 236 Ariz. 612, 618, ¶ 20 (App. 2015). The court could 

not ignore the child-support request. Contrary to Father’s argument, 

Grandmother has not waived her child-support argument by failing to raise 

it in her post-judgment motion. See Francine C., 249 Ariz. 289, 297, ¶¶ 18–19 

(A party cannot waive mandatory findings imposed by statute.).
ATKISON v. SHAFER

Decision of the Court

15

¶56 We remand the case for the court to address Grandmother’s 

interim child-support claim.

ATTORNEY’S FEES

¶57 Grandmother requests attorney’s fees under A.R.S. § 25-324.

Per our discretion, we decline to award fees. As the prevailing party, Father 

is awarded his costs on appeal upon compliance with ARCAP 21.

CONCLUSION

¶58 We affirm the parenting portion of the judgment. We remand 

for the court to enter the appropriate child-support award.