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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

SANDY LEE HUNT, Petitioner/Appellant, 

v.

STEPHANIE DAY, Intervenor/Appellee. 

No. 1 CA-CV 15-0436 FC

Appeal from the Superior Court in Yuma County 

No. S1400DO200800058 

The Honorable John P. Plante, Judge 

VACATED AND REMANDED 

COUNSEL 

Mary Katherine Boyte, P.C., Yuma 

By Mary K. Boyte Henderson 

Counsel for Petitioner/Appellant 

Torok Law Office P.L.L.C., Phoenix 

By Gregory T. Torok 

Counsel for Intervenor/Appellee
HUNT v. DAY 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Maurice Portley delivered the decision of the Court, in which 

Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined. 

P O R T L E Y, Judge: 

¶1 Sandy Lee Hunt (“Mother”) appeals the order granting 

grandparent visitation to her mother, Stephanie Day (“Grandmother”). For 

the following reasons, we vacate the order and remand the case back to the 

trial court. 

FACTS AND PROCEDURAL HISTORY 

¶2 Mother and her four children moved into a house adjacent to 

Grandmother’s home in 2009 and stayed there until 2011.1 During their 

stay, Grandmother and her husband saw the children regularly, had them 

spend the night, had them help around the house, and took them on 

vacations. She continued to see her grandchildren after they moved, but 

less frequently. 

¶3 In early 2012, Mother and Grandmother had a “falling out” 

after Mother contacted her biological father without first telling 

Grandmother. Their relationship deteriorated and, ultimately, they 

stopped communicating. Mother also prevented Grandmother from 

having contact with the children. 

¶4 Grandmother filed an action seeking an order of visitation 

with her grandchildren under Arizona Revised Statutes (“A.R.S.”) section

25-409.

2 After a bench trial, the trial court entered an order granting 

Grandmother visitation with her grandchildren, and Mother appealed. We 

have jurisdiction pursuant to A.R.S. § 12-2101(A)(2). 

 

1 Mother was divorced, and her ex-husband, the father of the children, had 

his parental rights terminated in 2010. 

2 We cite to the current version of the statute unless otherwise noted. 
HUNT v. DAY 

Decision of the Court 

3

DISCUSSION 

¶5 Mother argues the trial court abused its discretion by granting 

visitation to Grandmother. She claims the court failed to give any “special 

weight” to her determination that visitation was not in the best interests of 

her children, failed to give “significant weight” to her voluntary agreement 

to permit visitation, and failed to make specific findings pursuant to A.R.S. 

§ 25-403.

¶6 We review a trial court’s decision about grandparent 

visitation for an abuse of discretion. McGovern v. McGovern, 201 Ariz. 172, 

175, ¶ 6, 33 P.3d 506, 509 (App. 2001). We, however, review de novo issues 

of statutory interpretation and constitutional law. Id. 

¶7 Parents have a fundamental interest to the “care, custody, and 

control of their children” under the Fourteenth Amendment to the 

Constitution. Troxel v. Granville, 530 U.S. 57, 65 (2000). Moreover, we 

presume that a fit parent will act in the best interests of his or her children, 

id. at 68, including deciding whether to cultivate a bond between a 

grandparent and grandchildren. Id. at 70. However, if a parent’s decision 

regarding visits with a grandparent becomes subject to judicial review, 

courts must accord “at least some special weight” to that parent’s own 

determination. Id. 

A. Special Weight 

¶8 Mother argues the court failed to give “special weight” to her 

determination that visitation was not in the best interests of the children. 

We agree. 

¶9 In one of our first opinions addressing a grandparent’s right 

to visitation after Troxel, we stated that trial courts should conduct the 

following two-step inquiry: 

First, the court should recognize and apply a 

[rebuttable] presumption that a fit parent acts in 

his or her child’s best interest in decisions 

concerning the child’s care, custody, and 

control, including decisions concerning 

grandparent visitation. . . . Second, a trial court 

must consider and give “some special weight” 

to a fit parent’s determination of whether 

visitation is in the child’s best interest. . . .
HUNT v. DAY 

Decision of the Court 

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McGovern, 201 Ariz. at 177, ¶¶ 17, 18, 33 P.3d at 511 (citations omitted). 

Although the analysis was straightforward, we did not, like Troxel, define 

“special weight,” but said it could be resolved “on a case-by-case basis.” Id.

at 178, ¶ 18, 33 P.3d at 512 (citation omitted). 

¶10 In 2012, the Arizona Legislature repealed A.R.S. § 25-409, 

which had been titled “Visitation rights of grandparents and greatgrandparents,” and did not have a “special weight” provision. 2012 Ariz. 

Sess. Laws, ch. 309, § 19 (2d Reg. Sess.). It was replaced by a statute entitled 

“Third party rights,” id. at § 20, which added a subsection which explicitly 

incorporates the term “special weight.” A.R.S. § 25-409(E). The subsection 

provides, in relevant part, that: 

In deciding whether to grant visitation to a third 

party, the court shall give special weight to the 

legal parents’ opinion of what serves their 

child’s best interests and consider all relevant 

factors including: 

1. The historical relationship, if any, between 

the child and the person seeking visitation. 

2. The motivation of the requesting party 

seeking visitation. 

3. The motivation of the person objecting to 

visitation. 

4. The quantity of visitation time requested and 

the potential adverse impact that visitation will 

have on the child’s customary activities.3

A.R.S. § 25-409(E) (emphasis added). 

¶11 The new statute did not, however, define “special weight.” 

The term remained undefined until early 2016 when we decided Goodman 

v. Forsen, ___ Ariz. ___, ___ P.3d ___, 1 CA-CV 14-0844, 2016 WL 349699 

(Ariz. App. Jan. 28, 2016). In Goodman, we concluded that “special weight” 

means “that the parents’ determination is controlling unless a parental 

 

3 The subsection has a fifth factor, which requires the court to consider “the 

benefit in maintaining an extended family relationship,” but only if one or 

both of the parents are deceased. A.R.S. § 25-409(E)(5). 
HUNT v. DAY 

Decision of the Court 

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decision clearly and substantially impairs a child’s best interests.” Id. at *3, 

¶ 13. Specifically, we stated that: 

Our interpretation of A.R.S. § 25-409(E) 

recognizes that the “special weight” 

requirement demands robust deference to fit 

parents’ opinions concerning their children’s 

best interests. Consistent with the 

constitutional right to parent, the legislature has 

provided nonparents with fewer rights than 

parents. Assuming parental fitness, the analysis 

required under § 25-409 is not a typical 

balancing test in which the court’s own 

determination of best interests is controlling –

we interpret “special weight” to mean that the 

parents’ determination is controlling unless a 

parental decision clearly and substantially 

impairs a child’s best interests. Even if 

arbitrary, the parents’ determination is the 

primary factor in the analysis, and the burden is 

on the person seeking visitation to demonstrate 

that denial of visitation would clearly and 

substantially impair the child’s interests.

That is not to say that a fit parent’s decision 

must always be upheld. . . . But a nonparent 

who seeks visitation carries a substantial 

burden to prove that the parent’s decision is 

harmful. It is not enough merely to show that 

the nonparent stands in loco parentis to the child. 

Nor is it enough merely to show that a 

reasonable person could disagree with the 

parent’s decision to deny visitation. The court’s 

role is not to engineer what it perceives to be the 

optimal situation for the child, but to determine 

whether compelling circumstances warrant 

state interference with a fit parent’s decisions. 

The nonparent must prove that the child’s best 

interests will be substantially harmed absent 

judicial intervention.

Id. at *3, 4, ¶¶ 13, 14 (internal quotation marks and citations omitted). 
HUNT v. DAY 

Decision of the Court 

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¶12 Here, the court concluded Mother was a fit parent. The court 

analyzed the § 25-409 factors, including the fact that the children and 

Grandmother had a close relationship, and had a mutual desire to see each 

other. The court, however, recognized that Mother resented her mother 

based on childhood events, which were “legitimate things to be angry 

[about],” but not enough to prevent the children from seeing their 

Grandmother. Consequently, the court granted Grandmother one 

weekend per month visits with her grandchildren. 

¶13 The record reveals the hearing focused on the history between 

Mother and Grandmother. In ruling that their dispute was insufficient to 

prevent the children from visiting with their Grandmother, the court 

seemed to discount Mother’s concerns that Grandmother’s husband 

admitted to physically disciplining the children against her wishes, as well 

as her concerns that he drank too much around the children. Although the 

visitation order directs no alcohol consumption or corporal punishment 

during the visits, both factors are relevant because they impact the “special 

weight” the court must give to Mother’s opinion about what is in the best 

interests of her children. 

¶14 Because the court rejected Mother’s opinion and did not have 

the benefit of the Goodman definition of “special weight,” including the 

impact of physically disciplining the children against Mother’s wishes, 

Goodman, 1 CA-CV 14-0844, 2016 WL 349699, at *5, ¶ 17, we vacate the order 

of visitation and remand the matter for the court to consider the evidence 

in light of the now-defined special weight to give to Mother’s opinion, and 

whether Grandmother proved that the children’s best interests would 

suffer “clear and substantial” harm without judicial intervention. See 

McGovern, 201 Ariz. at 179, ¶¶ 25, 26, 33 P.3d at 513 (remanding back to the 

trial court “to conduct a further evidentiary hearing” in light of Troxel and 

the court’s newly articulated test for determining grandparent visitation) 

(citation omitted); see also Goodman, 1 CA-CV 14-0844, 2016 WL 349699, at 

*5, ¶ 18 (remanding to “permit the court to reweigh the evidence under the 

[newly articulated] test”).

B. Significant Weight 

¶15 Mother also contends the “court erred as a matter of law by 

failing to give significant weight to [her] voluntary agreement to permit 

visitation.” We disagree. 
HUNT v. DAY 

Decision of the Court 

7

¶16 In Troxel, after noting that many states expressly provide that 

courts may not award visitation unless a parent has unreasonably denied 

visits to third parties, like grandparents, 530 U.S. at 71, the Court criticized 

the trial court’s “failure to accord significant weight” to the mother’s offer 

to give “meaningful visitation to the [grandparents],” even if once a month 

was less than what the grandparents were seeking. Id. at 60-61, 72. In 

McGovern, we followed that direction when we reiterated that a trial court 

should give “significant weight” to a “parent’s voluntary agreement to 

some visitation, albeit not as much visitation as the grandparent desires.” 

201 Ariz. at 177-78, ¶ 18, 33 P.3d at 511-12. 

¶17 Here, Mother had not, and did not, agree to any visitation. 

She sent Grandmother a text message in May 2013, stating, “I would love 

for my children to spend time with their family,” but noted that unless 

Grandmother and her husband “s[at] down with a counse[lor],” with 

Mother, and Mother’s husband to “discuss the expectations of the 

children’s relationship with [them],” there would be no contact. The text 

message did not offer or afford Grandmother any time with the children. 

Instead, and as the court found, Mother’s decision “condition[ed] 

[visitation] upon counseling.” Consequently, the court’s determination 

that Mother was not willing to allow unconditional visits with the children 

was not legal or factual error. 

C. Failure to Make Specific Findings Pursuant to A.R.S. § 25-403 

¶18 Finally, and relying on Downs v. Scheffler, Mother argues the 

trial court erred because it was required to “consider and make findings 

regarding the statutory factors of A.R.S. § 25-403.” 206 Ariz. 496, 80 P.3d 

775 (App. 2003). We disagree. 

¶19 Downs was not a grandparent visitation case, but one where 

the paternal grandmother wanted legal custody of her grandchild. Id. at 

497-98, ¶¶ 1-5, 80 P.3d at 776-77. Because custody, now known as legal 

decision-making, requires the court to make factual findings regarding how 

the decision would further the best interests of the child under A.R.S. § 25-

403, we reversed the ruling and remanded the case for further proceedings, 

including addressing whether visitation was appropriate, assumedly if 

custody was not granted. Id. at 500, ¶ 12, 80 P.3d at 779. Because this is not 

a custody case, and there was no request for factual findings under Arizona 

Rule of Family Law Procedure 82 before trial, the court was not required to 

make specific factual findings under § 25-409 beyond those made in the 

record. 
HUNT v. DAY 

Decision of the Court 

8

CONCLUSION 

¶20 Based on the foregoing, we vacate the ruling granting 

Grandmother visitation with the children and remand for further 

proceedings consistent with this decision.