IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MOLLY LAMBERTUS, Petitioner,

v.

THE HONORABLE GERALD PORTER, 

Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, 

in and for the County of MARICOPA, Respondent Judge

LINDA FAYE DAY-STRANGE, Real Party in Interest.

No. 1 CA-SA 14-0085

Appeal from the Superior Court in Maricopa County

No. FC2013-052939

The Honorable Gerald Porter, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Pangerl Law Firm, PLLC, Phoenix

By Regina Pangerl

The Murray Law Offices, P.C., Scottsdale

By Stanley David Murray

Co-Counsel for Petitioner

Gregan & Associates, Mesa

By Lawton Connelly

Counsel for Real Party in Interest/Intervenor
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Opinion of the Court

2

OPINION

Judge Jon W. Thompson delivered the opinion of the Court, in which 

Presiding Judge Randall M. Howe joined and Judge Michael J. Brown 

dissented.

T H O M P S O N, Judge:

¶1 This special action arises out of the trial court’s temporary 

order in a paternity action brought by Molly Lambertus (Mother) against 

Tyler Day (Father) ordering that paternal grandmother Linda Faye DayStrange (Grandmother) receive two hours of visitation per week with Child. 

For the following reasons, we accept jurisdiction and deny relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 Child was born on August 28, 2013. Father, who is serving a 

lengthy prison sentence1, signed an acknowledgment of paternity. Mother 

obtained an amended birth certificate naming Father as Child’s biological 

father before filing the paternity action in December 2013. Grandmother 

filed a motion to intervene in the paternity action, which Mother did not 

object to and the trial court granted. In early February 2014, Grandmother 

filed a petition for grandparent visitation and a motion for a temporary 

order granting her visitation with Child. Mother filed a motion to strike 

Grandmother’s motion for temporary orders. Also in February 2014, the 

court appointed a Court Appointed Advisor (CAA) to investigate Mother’s 

concerns about Grandmother and Father’s concerns about Mother, ordered 

Mother to undergo a hair follicle test,2 and ordered Grandmother to 

undergo random alcohol testing.

¶3 In April 2014, the trial court held an evidentiary hearing on 

temporary orders. After taking testimony from the CAA, Mother, and 

Grandmother, the court ruled that, on a temporary basis, Grandmother 

would have two hours per week of visitation with Child at a pizza 

 

1 As of the February 28, 2014 hearing, Father had six and one-half years left 

to serve of his sentence.

2 The court’s order stated “[t]he Hair Follicle Test shall be for Screen B (most 

commonly abused 5 street drugs).”
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Opinion of the Court

3

restaurant on the day and time selected by Mother beginning April 27, 2014. 

Visits were to take place only at the restaurant unless the parties agreed in 

writing to another location. The court further ordered stopping 

Grandmother’s random alcohol tests, with the caveat that Mother could 

discontinue any visit if she had concerns about Grandmother’s sobriety and 

Grandmother would then need to immediately go for alcohol testing. 

¶4 Mother filed a motion with the trial court to stay the 

temporary orders, which the trial court denied. She filed this special action 

and a request for stay, which we denied after a hearing. 

DISCUSSION

¶5 Special action jurisdiction is appropriate because the order 

complained of here is a temporary order granting visitation rights and there 

is no adequate and speedy remedy by appeal. See Finck v. Superior Court,

177 Ariz. 417, 418, 868 P.2d 1000, 1001 (App. 1993); Ariz. R.P. Spec. Act. 1(a).

¶6 In her petition for special action, Mother argues that the trial 

court lacks subject matter jurisdiction to grant temporary visitation to 

Grandmother. She further argues that her right to due process was violated 

because she did not have sufficient time to prepare for the hearing on 

temporary orders.

¶7 Mother’s reference to “subject matter jurisdiction” with 

regard to the first issue is imprecise. Article 6, Section 14(1), of the Arizona 

Constitution gives the superior court original jurisdiction of “[c]ases and 

proceedings in which exclusive jurisdiction is not vested by law in another 

court.“ The superior court has original jurisdiction of paternity actions. 

Arizona Revised Statutes (A.R.S.) § 12-123(A) (Supp. 2013) provides that the 

superior court “ha[s] original and concurrent jurisdiction as conferred by 

the constitution . . . .” Section 12-123(B) further provides that “[t]he court, 

and the judges thereof, shall have all powers and may issue all writs 

necessary to the complete exercise of its jurisdiction.” Section 25-801 (2007)

provides that the superior court has original jurisdiction in proceedings to 

establish paternity and that “[a]ll such proceedings shall be civil actions.”

¶8 The question before us is whether the trial court had statutory 

or other authority to issue the temporary order for visitation in this case. 

We conclude that it did. 

¶9 Arizona Revised Statutes § 25-409(C) (Supp. 2013) provides:
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Opinion of the Court

4

Pursuant to § 25-402, subsection B, paragraph 2, 

a person other than a legal parent may petition 

the superior court for visitation with a child. 

The superior court may grant visitation rights 

during the child’s minority on a finding that the 

visitation is in the child’s best interests and that 

any of the following is true: . . . (2) the child was 

born out of wedlock and the child’s parents are 

not married to each other at the time the petition 

for visitation is filed. 

Arizona Revised Statutes § 25-404(A) (Supp. 2013) provides that “[a] party 

to a legal decision-making and parenting time proceeding may move for a 

temporary order.” The trial court determined here that Grandmother was 

a party to a legal decision-making and parenting time proceeding because 

she had intervened in the paternity action. Although not cited by the 

parties, A.R.S. § 25-817 similarly provides, in relevant part:

A. Pending a judicial determination of 

paternity, the court shall issue a temporary 

order of support, and may issue a temporary 

order regarding custody and parenting time, 

if any of the following applies:

. . . .

2. A notarized or witnessed statement is 

signed by both parents acknowledging 

paternity . . . and filed with the department 

of health services pursuant to § 36-334 or 

filed with the department of economic 

security.

. . . .

B. A temporary order issued pursuant to this 

section does not prejudice the rights of a 

person or child that are adjudicated at 

subsequent hearings in the proceeding.
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Opinion of the Court

5

C. A temporary order issued pursuant to this 

section may be revoked or modified and 

terminates when the final support, custody 

or parenting time order is entered or when 

the petition for support, custody or 

parenting time is dismissed.

¶11 Mother argues that Grandmother is not “[a] party to a legal 

decision-making and parenting time proceeding” under A.R.S. § 25-404(A) 

and therefore the superior court lacked statutory authority to issue the 

temporary order for visitation. Although it is true that sections 25-404 and 

25-817 do not contain the word “visitation,” A.R.S. § 25-402 (Supp. 2013) 

does. Section 25-402 instructs the court to determine whether it has 

jurisdiction before “conduct[ing] a proceeding concerning legal decisionmaking or parenting time, including a proceeding to determine the legal 

decision-making or visitation of a nonparent. . . .” That provision evidences

that the legislature intended visitation of a nonparent to be included under 

“legal decision-making or parenting time.” 

¶12 Additionally, A.R.S. § 12-123 (B) provides that “[t]he court, 

and the judges thereof, shall have all powers and may issue all writs 

necessary to the complete exercise of its jurisdiction.” Superior court judges 

also have inherent authority “to conduct such proceedings and issue such 

orders as are necessary to the complete administration of justice . . . .” 

Arpaio v. Baca, 217 Ariz. 570, 576, ¶ 19, 177 P.3d 312, 318 (App. 2008) (citing 

Schavey v. Roylston, 8 Ariz. App. 574, 575, 448 P.2d 418, 419 (1968)). We 

conclude that the authority to make temporary orders as to grandparent 

visitation in an appropriate case is necessary to the court’s exercise of its 

jurisdiction over child custody and visitation issues.

¶13 Mother’s due process argument is without merit. 

Grandmother filed her petition for visitation on February 5, 2014. At the 

February 28, 2014 hearing, the trial court appointed the CAA and ordered 

all parties, including Grandmother, to fully comply with the CAA’s 

investigation. The court set a review hearing on Friday, April 18, 2014. The 

judge informed the parties that he would not enter temporary orders on 

April 18, but if temporary orders were still required he would hold a 

hearing within a week of that date. 

¶14 The CAA filed her report on April 8, 2014. The court held the 

review hearing on Friday, April 18, 2014, ordered Grandmother to sign 

medical releases, and set the evidentiary hearing for Monday, April 21,
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Opinion of the Court

6

2014. Mother did not object at that time to the hearing being set on Monday, 

but by the end of the day she filed an emergency motion to continue the 

April 21 hearing. On the morning of the hearing, counsel for Mother 

objected that she had not had adequate time to prepare, and that she 

wanted more time than the twenty minutes per side the court had allotted. 

¶15 By April 21, the court had had the CAA’s report for almost 

two weeks. Although Mother states in her reply that the parties did not 

receive the report until April 18, she acknowledges that she learned of the 

CAA’s “report and recommendations” about a week before the April 18 

hearing. Grandmother did not dispute Mother’s allegations about her past 

alcohol abuse, and the CAA testified that Grandmother had been candid 

with her about her past problems with alcohol. 

¶16 The trial court did not violate Mother’s due process rights in 

setting the evidentiary hearing on temporary orders when it did–-more 

than two months after Grandmother filed her petition for visitation. 

Although Mother argues that the court “suddenly decided to set an 

evidentiary hearing,” all of the parties had known the course the judge 

planned to take because he let them know on February 28 that he would 1) 

get the report, 2) hold a review hearing on April 18, and 3) schedule the 

evidentiary hearing on temporary orders, if still needed, within a week of 

the April 18 hearing. 

¶17 Both parties request attorneys’ fees pursuant to A.R.S. § 25-

324 (Supp. 2013). In our discretion, we decline to award attorneys’ fees.

¶18 For the foregoing reasons, we accept jurisdiction and deny 

relief.

B R O W N, Judge, dissenting:

¶19 I disagree with the majority’s conclusion that A.R.S. § 25-402, 

or any other statute in Title 25, authorized the trial court to grant 

Grandmother’s visitation request as a temporary order. 

¶20 In December 2013, Mother filed a petition for paternity, legal 

decision-making, parenting time, and child support, which the majority 

refers to as the “paternity action.” Grandmother sought to intervene in the 

paternity action and requested temporary visitation. She then filed a 

motion for a temporary order, asserting that under A.R.S. § 25-315 the trial 

court had authority to enter such an order and it was in Child’s best 
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Brown, J., Dissenting

7

interests to adopt Grandmother’s proposed visitation schedule.3 In 

response, Mother filed a motion to strike Grandmother’s motion, asserting

that temporary orders are governed by A.R.S. § 25-404(A) and “there is no 

legal or statutory basis upon which Paternal Grandmother has the legal

right to seek temporary orders for grandparent visitation.” 

¶21 On February 28, 2014, the trial court held a return hearing on 

the pending motions. The court denied Mother’s motion to strike, stating 

that because Grandmother is a party under A.R.S. § 25-404, “that pretty 

much resolves the issue of whether she can or cannot pursue temporary 

orders.” The court also noted that “there’s nothing that doesn’t permit 

[temporary orders] either.” Responding to cross-allegations of substance 

abuse, the court appointed the CAA and ordered Grandmother and Mother 

to report for substance abuse testing. 

¶22 On April 18, the trial court held a review hearing. Mother 

explained that the CAA had not been provided with all the relevant 

documentation in order to make a recommendation because Grandmother 

had failed to sign medical releases related to hospitalization for excessive 

alcohol consumption in July 2013. Presumably agreeing on the importance 

of the documentation, the court ordered Grandmother to provide the 

releases. After Mother’s counsel reiterated her contention that § 25-404 

does not authorize temporary orders for grandparent visitation, the court 

responded that as an alternative it could order parenting time for Father 

and compel Mother to take Child to visit him in prison. 

¶23 Three days later, the court held an evidentiary hearing on 

Grandmother’s motion for temporary orders. At the outset of the hearing, 

Mother noted that Grandmother had still not provided the requested 

medical releases. The CAA testified in favor of Grandmother being granted 

temporary visitation, but acknowledged on cross-examination that she had 

not reviewed any of Grandmother’s medical records regarding alcohol 

abuse. After Mother and Grandmother each testified regarding a myriad 

of accusations of alcohol abuse, drug abuse, and harassment by all parties, 

the court granted Grandmother’s request for a temporary visitation order. 

¶24 Arizona law expressly provides that a trial court has 

discretion to grant visitation rights to nonparents. A.R.S. § 25-409(C) (“The 

superior court may grant visitation rights during the child’s minority on a 

finding that the visitation is in the child’s best interests[.]”) (emphasis 

 

3 Although A.R.S. § 25-315 refers to temporary orders, it does not 

address visitation.
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Brown, J., Dissenting

8

added); Egan v. Fridlund-Horne, 221 Ariz. 229, 238, ¶ 31, 211 P.3d 1213, 1222

(App. 2009) (“[T]he right of a nonparent to visitation is discretionary with 

the superior court.”). In evaluating a request for visitation, a court “shall 

give special weight to the legal parents’ opinion of what serves their child’s 

best interests.” A.R.S. § 25-409(E); see also McGovern v. McGovern, 201 Ariz. 

172, 177, ¶ 17, 33 P.3d 506, 511 (App. 2001) (holding that courts “should 

recognize and apply a 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”).

¶25 The law also provides that a trial court’s authority to address 

matters in domestic relations proceedings is established by statute. See Fenn 

v. Fenn, 174 Ariz. 84, 87, 847 P.2d 129, 132 (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. Every power that the 

superior court exercises in a dissolution proceeding must find its source in 

the supporting statutory framework.”); cf. Hunt v. Hunt, 22 Ariz. App. 554, 

556, 529 P.2d 708, 710 (1974) (“In the absence of statutory authorization, it 

is our opinion that the trial court committed error when it included a 

temporary custody order in its final judgment which decided the issue of 

dissolution of the marital bonds.”). Because no statute gives a trial court 

the legal ability to award visitation to a nonparent at a temporary orders 

proceeding, the court in the instant case acted in excess of its authority. 

¶26 The plain language of A.R.S. § 25-402 does not address 

temporary orders; rather, it governs the extent of the authority of Arizona’s 

courts over “legal decision-making or parenting time” proceedings. Section 

25-402 thus requires that before a court conducts a proceeding concerning 

legal decision-making or parenting time, including a proceeding to 

determine the legal decision-making or visitation of a nonparent, the court 

“must confirm its authority to do so to the exclusion of any other state, 

Indian tribe or foreign nation by complying with the uniform child custody 

jurisdiction and enforcement act, the parental kidnapping prevention act 

and any applicable international law concerning the wrongful abduction or 

removal of children.” Section 25-402 makes no reference to any procedural 

requirements, much less temporary orders. Instead, § 25-402 ensures that 

a court handling matters involving the custody and care of children will 

verify at the inception of the proceeding that the court has proper authority

to decide the pending matter, whether it be a petition for legal decisionmaking, parenting time, or visitation. To the extent it has any relevance to 

the question before us, the statute confirms the principle that in matters 

arising under Title 25, courts will act in accordance with the authority 

prescribed by the legislature. 
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Brown, J., Dissenting

9

¶27 Nor does § 25-404 support the trial court’s ruling. “Parenting 

time” is defined as “the schedule of time during which each parent has 

access to a child at specified times.” A.R.S. § 25-401(5) (emphasis added). 

“Visitation” is defined as “a schedule of time that occurs with a child by 

someone other than a legal parent.” A.R.S. § 25-401(7) (emphasis added). 

Section 25-404(A) provides as follows: 

A party to a legal decision-making and parenting time proceeding

may move for a temporary order. This motion must be 

supported by pleadings as provided in § 25-411. The court 

may award temporary legal decision-making and parenting time

under the standards of § 25-403 after a hearing, or, if there is 

no objection, solely on the basis of the pleadings.

(Emphasis added.) 

¶28 Notably absent from § 25-404 is any mention of visitation. 

The statute’s plain language gives a trial court authority to issue temporary 

orders involving “temporary legal decision-making and parenting time.”

The trial court nonetheless found that Grandmother is a “party” to a legal 

decision-making or parenting time proceeding because she intervened in 

the paternity action. Grandmother would not be able to participate as a 

party in any aspect of the legal decision-making or parenting time 

proceedings, however, because she sought visitation under A.R.S. § 25-

409(C). She did not seek in loco parentis visitation under § 25-409(A). Thus, 

the mere fact that Grandmother filed a petition for visitation in the paternity 

action did not give the trial court authority to treat her petition as a 

proceeding for legal decision-making or parenting time. 

¶29 This construction of § 25-409 is supported by the legislative 

history of the pertinent statutes in Title 25. The former statutes did not 

include a specific definition for “visitation.” See A.R.S. § 25-402 (2001). In 

2012, the legislature adopted the current statutes that replaced “custody” 

with “legal decision-making” and added a new definition for “visitation.” 

2012 Ariz. Sess. Laws, ch. 309, § 4. As pertinent here, all references in Title 

25, Chapter 4 to “custody” were replaced with “legal decision-making.”4

 

4 The prior version of A.R.S. § 25-404(A) (1996) read as follows: “A 

party to a custody proceeding may move for a temporary custody order. This 

motion must be supported by pleadings as provided in section 25-411. The 

court may award temporary custody under the standards of section 25-403 
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Brown, J., Dissenting

10

See id. In light of these amendments, had the legislature intended to give

nonparents the right to obtain temporary orders it could easily have done 

so by including the phrase “visitation” in § 25-404.5 The legislative decision

to omit “visitation” in § 25-404 therefore reflects the intent to exclude 

nonparents from those who have the right to obtain temporary orders for 

visitation.6 See State v. Gray, 227 Ariz. 424, 429 n. 5, ¶ 15, 258 P.3d 242, 247 

n. 5 (App. 2011) (“To the extent the legislature omitted references to 

attempted persuasion of a witness found in previous statutes, we presume 

such omissions were intentional.”); State v. Averyt, 179 Ariz. 123, 128, 876 

P.2d 1158, 1163 (App. 1994) (“Under the rules of statutory construction, 

when the legislature modifies the language of a statute, there is a 

presumption that a change in the existing law was intended.”).

¶30 Construing the statute as outlined comports with the 

constitutional standards underpinning family relationships. “Parents have 

a constitutionally protected right under the Fourteenth Amendment to raise 

their children as they see fit.” Graville v. Dodge, 195 Ariz. 119, 123-24, ¶ 19,

985 P.2d 604, 608-09 (App. 1999); see also Prince v. Massachusetts, 321 U.S. 

158, 166 (1944) (recognizing that the “custody, care and nurture of the child 

reside first in the parents”). However, grandparent visitation granted 

within the parameters of § 25-409 “does not substantially infringe on 

parents’ fundamental rights.” McGovern, 201 Ariz. at 175, ¶ 9, 33 P.3d at

509. A presumption exists that “fit parents act in the best interests of their 

 

after a hearing, or, if there is no objection, solely on the basis of the 

pleadings.” (Emphasis added.)

5 If the legislature intended to place a visitation request on the same 

footing as legal decision-making and parenting time, presumably it would 

have said as much in A.R.S. § 25-407, which (1) provides that legal decisionmaking and parenting time hearings have priority status and (2) sets a sixtyday requirement for conducting an evidentiary hearing on a motion for 

temporary orders. Conspicuously absent from § 25-407 is any reference to 

visitation. Similarly, had the legislature intended to include visitation 

proceedings as part of temporary orders in a paternity action, it could have 

included the appropriate wording. See A.R.S. § 25-817.

6 Whether the legislature intended that nonparents who stand in loco 

parentis to the child may properly seek a temporary order for visitation is 

not an issue presented in this case. See Egan, 221 Ariz. at 232 n. 5, ¶ 8, 211 

P.3d at 1216 n. 5 (declining to address the trial court’s authority to issue a 

temporary visitation order requested by nonparent who stood in loco 

parentis). 
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Brown, J., Dissenting

11

children, Troxel v. Granville, 530 U.S. 57, 68 (2000), and a grandparent 

seeking visitation has the burden of rebutting the presumption “that a 

decision made by a fit parent to deny or limit visitation was made in the 

child’s best interest,” McGovern, 201 Ariz. at 177, ¶ 17, 33 P.3d at 511. 

¶31 Consistent with the recognition of these parental rights, the 

legislature has “provided nonparents with fewer rights than parents.”

Egan, 221 Ariz. at 238, ¶ 31, 211 P.3d at 1222; McGovern, 201 Ariz. at 177, ¶ 

16, 33 P.3d at 511 (noting the legislature’s awareness of “parents’ superior 

right to the custody and care of their children”) (citations omitted). These 

principles, together with the specific lines the legislature has drawn 

between parents and nonparents, leads to the logical conclusion that a 

parent has the right to seek temporary orders relating to legal decisionmaking and parenting time, but a nonparent seeking visitation lacks the 

same right. See McGovern, 201 Ariz. at 178, ¶ 20, 33 P.3d at 512 (“With those 

concepts in mind, we conclude that a trial court must not only apply ’the 

statute as written,’ but also must afford a fit parent the procedural and 

evidentiary safeguards discussed above in order to apply § 25-409 in a 

constitutionally acceptable manner.”).

¶32 Finally, while A.R.S. § 12-123(B) provides broad authority for 

the superior court to manage its jurisdiction and issue orders necessary for 

the “administration of justice,” Arpaio, 217 Ariz. at 576, ¶ 19, 177 P.3d at

318, the majority cites no authority in the domestic relations context

indicating that the superior court has general inherent authority to act 

beyond the authority granted by statute. See Victor v. Victor, 177 Ariz. 231, 

233, 866 P.2d 899, 901 (App. 1993) (“Our domestic relations court has no 

underlying power to grant equitable relief outside of the statutory 

framework from which it derives its authority.”); see also A.R.S. § 25–311 

(“The superior court is vested with original jurisdiction to hear and decide 

all matters arising pursuant to this chapter and pursuant to chapter 4, article 

1 of this title.”); Finck v. Superior Court, 177 Ariz. 417, 421-22, 868 P.2d 1000, 

1004-05 (App. 1993) (“Before superior court jurisdiction expands in 

domestic relations actions [regarding] custody or visitation rights . . . the 

legislature must first create those rights[.]”), approved in part sub nom., Finck

v. O’Toole, 179 Ariz. 404, 880 P.2d 624 (1994). 

¶33 In sum, the majority opinion is in conflict with the plain 

language of § 25-404(A), the specific definitions of “parenting time” and 

“visitation” in § 25-401, the recent revisions of both of these statutes, and 

the constitutional presumptions afforded to parents. See Hall v. Read Dev., 

Inc., 229 Ariz. 277, 279, ¶ 6, 274 P.3d 1211, 1213 (App. 2012) (“We first look 

to the language [used by the legislature] and will give effect to the plain 
LAMBERTUS v. HON. PORTER/DAY-STRANGE

Brown, J., Dissenting

12

meaning of its terms as the best indicator of intent unless those terms are 

ambiguous or would create an absurd result.”); see also O’Toole, 179 Ariz. at

407, 880 P.2d at 627 (“The legislative scheme, naming specific classes of 

parties to whom visitation may be granted, suggests to us that the 

legislature did not intend to confer authority to award visitation to 

unspecified third parties.”).

¶34 Because the trial court lacked the authority to issue a 

temporary order granting visitation to grandmother, I respectfully dissent. 

I would therefore grant Mother’s requested relief by vacating the

temporary visitation order.