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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANITA ALUPOAIEI, Petitioner/Appellee, 

v.

TYLER CORREA, Respondent/Appellee. 

__________________________________ 

OANA G. ALUPOAIEI, Third-Party/Appellant. 

No. 1 CA-CV 20-0570 FC

Appeal from the Superior Court in Maricopa County

No. FC2019-000755 

The Honorable Michael Rassas, Judge

VACATED AND REMANDED

COUNSEL

Rebecca L. Owen PLLC, Phoenix

By Rebecca L. Owen

Counsel for Respondent/Appellee

Law Office of Florence M. Bruemmer PC, Anthem

By Florence M. Bruemmer

Counsel for Third-Party/Appellant

FILED 11-23-2021
ALUPOAIEI v. CORREA/ALUPOAIEI

Decision of the Court

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MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which 

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

F U R U Y A, Judge:

¶1 Oana Alupoaiei (”Grandmother”) challenges the superior 

court’s ruling on her petitions for third-party legal decision-making

authority relating to her grandchild. Because the court erred in denying the 

amended petition without a hearing, we vacate that ruling and remand for 

the court to consider the merits of the amended petition for third-party legal 

decision-making. 

FACTS AND PROCEDURAL HISTORY1

¶2 Danita Alupoaiei (“Mother”) and her child lived with 

Grandmother in New York since the child’s birth in March 2016 until mid2017. A New York court awarded joint custody to Mother and Tyler Correa 

(“Father”), who were not married. In July 2017, Mother and Father moved 

with the child to North Carolina, where they lived together for nearly a 

year. 

¶3 In June 2018, Mother and the child moved to Arizona to live 

with Grandmother. Mother registered the New York custody order in 

Arizona. In early 2019, Mother petitioned to modify the New York joint 

custody order (“2019 petition”). Mother sought sole legal decision-making 

and primary residential parent designation because she and Father now 

lived in different states, and Father, a servicemember, would soon be

stationed in Japan. Father opposed the petition. The court entered 

temporary orders continuing joint legal decision-making, designating

Mother the primary residential parent, and awarding Father up to one week 

of parenting time when he visited Arizona. Because Father was stationed 

overseas, the court granted his unopposed motion to stay the final 

1 Grandmother objects to Tyler Correa’s statement of facts because

they lack citations to the record and raise events that occurred after the 

ruling on appeal. See ARCAP 13(a)(5), (b)(1). However, our factual

discussion is based on our own review of the record. See Sholes v. Fernando, 

228 Ariz. 455, 457, ¶ 2, n.2 (App. 2011). 
ALUPOAIEI v. CORREA/ALUPOAIEI

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3 

modification hearing under the Servicemembers Civil Relief Act. See 50 

U.S.C. §§ 3901–4043. 

¶4 During the stay, Mother re-enlisted and was also stationed 

overseas. Grandmother petitioned for third-party sole legal decisionmaking authority under Arizona Revised Statutes (“A.R.S.”) § 25-409. The 

court denied the petition without a hearing, finding it did not show that all 

four elements in § 25-409(A) were true, “specifically § 25-409(A)(2).” A few 

days later, Father returned to the United States and moved for expedited 

temporary orders allowing him to bring the child to his temporary duty

station in New York. Father had been granted emergency leave and a 

humanitarian transfer so he could take custody of the child. 

¶5 While Father’s motion was pending, Grandmother amended 

her petition for third-party legal decision-making. She again failed to serve 

either parent or their attorneys. In response to Father’s attempt to take the 

child with him to New York, Grandmother filed an emergency motion 

without notice. She sought sole legal decision-making, physical custody, 

and supervised parenting time for Father. The court issued a temporary 

order granting Grandmother’s emergency motion. 

¶6 The next day, Father filed an “expedited stipulation” signed 

by both parents, in which Mother allowed Father to keep the child until her

overseas deployment ended. As a result, the day after the court had issued 

the temporary order granting Grandmother sole legal decision-making and 

physical custody, it issued an order temporarily granting Father physical 

custody. The court later dismissed Grandmother’s emergency motion but 

did not refer to the temporary order the court had previously issued in 

response to that emergency motion.2 

¶7 The court later signed a final order (1) dismissing

Grandmother’s emergency motion and vacating the hearing on that motion, 

(2) denying Grandmother’s petition and amended petition for third-party

legal decision-making, and (3) dismissing Father’s expedited motion for 

2 In yet another order, the court set a status conference on 

Mother’s 2019 petition to modify. It later stayed the status conference after

we stayed the appeal because of Mother’s overseas deployment, citing the 

Servicemembers Civil Relief Act. Once we lifted the stay in May 2021, the 

superior court held a status conference. Both parents and Grandmother 

appeared, and, on Mother’s request, the court dismissed her 2019 petition 

to modify parenting time, legal decision-making, and child support.
ALUPOAIEI v. CORREA/ALUPOAIEI

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temporary parenting time orders. Grandmother unsuccessfully moved for 

reconsideration of the order denying her petitions for third-party legal 

decision-making. 

DISCUSSION

I. Appellate Jurisdiction Exists.

¶8 Father argues that we lack jurisdiction because the notice of 

appeal is premature. Father asserts that because the petition for 

grandparent visitation is pending in superior court, the appeal from the 

denial of the third-party petition is premature. We disagree. The petition 

for grandparent visitation filed under § 25-409(C) is a separate proceeding

from the petition for third-party legal decision-making filed under § 25-

409(A). Because the ruling on the § 25-409(A) petition was final, the appeal 

is not premature. The notice of appeal was timely, and we have jurisdiction 

pursuant A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1). 

II. The Summary Denial Eliminated the Need to Serve the Petition. 

¶9 Father contends that Grandmother did not serve the thirdparty § 25-409(A) petitions or otherwise provide notice to either parent.

Although this was not addressed in her appellate briefs, Grandmother 

explained in her response to Father’s motion to strike that she did not serve 

the third-party petitions because the court summarily denied them. As a 

result, the court never issued an order to appear to serve with the petition. 

¶10 Under Arizona Rules of Family Law Procedure 27(d), a thirdparty petition filed under § 25-409(A) must be served with an order to 

appear no later than twenty days before the hearing. See also A.R.S. § 25-

409(D) (requiring the petitioner to serve the parents notice and a copy of a 

petition filed under § 25-409(A)). But when the court summarily denies the 

petition without a hearing and before it issues the order to appear, there is 

no need for the petitioner to serve that petition and order to appear. Thus, 

the lack of service did not prejudice Father. 

III. The Amended Petition Sufficiently Alleged the Elements in § 25-

409(A). 

¶11 Grandmother argues the court erred by denying the petition 

and amended petition for third-party legal decision-making without a 

hearing. We review the court’s interpretation and application of A.R.S. § 25-

409 de novo. Chapman v. Hopkins, 243 Ariz. 236, 240, ¶ 14 (App. 2017). 
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¶12 A person other than a parent can petition for legal decisionmaking by filing a petition under § 25-409(A). See Id. at ¶ 15; A.R.S. § 25-

402(B)(2). The court must summarily deny the petition unless it finds that 

the petition establishes all four statutory elements listed in A.R.S. § 25-

409(A).3 See Chapman, 243 Ariz. at 240, ¶ 16. But to withstand summary 

disposition, a petition for third-party legal decision-making under § 25-

409(A) need only allege that the four statutory elements exist, not prove 

them, and the facts alleged in the petition need not be “uncontroverted.”

Chapman, 243 Ariz. at 242, ¶¶ 21 n.2, 24.

¶13 Here, Father contends Grandmother failed to show she stood 

in loco parentis or that it would be significantly detrimental for the child to 

be placed in the care of either parent. See A.R.S. § 25-409(A)(1)–(2).

Furthermore, the court determined Grandmother’s petition and amended 

petition did not sufficiently comply with § 25-409(A)(2). 

¶14 To adequately plead her in loco parentis status, Grandmother 

had to sufficiently allege the child treated her “as a parent” and she “has 

formed a meaningful parental relationship with [the] child for a substantial 

period of time.” A.R.S. § 25-401(1). Like the grandparents in Chapman, who 

stood in loco parentis, Grandmother alleged she provided daily care and 

lived with the child for most of his life. See Chapman, 243 Ariz. at 238, 242, 

¶¶ 4–6, 22; see also Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 48–49, 

¶¶ 5–11 (App. 2013) (stating that foster parents stood in loco parentis

because they cared for the children for twenty months while the mother 

struggled with substance abuse and the father was incarcerated or in 

treatment programs).

¶15 Grandmother alleged that she lived with the child all but nine 

months of his life. She alleged that she provided for the child’s daily 

financial, medical, emotional, and physical needs and set forth examples. 

3 The court must summarily deny a third-party petition for legal 

decision-making unless the pleading shows all four statutory elements are

true: (1) the petitioner stands in loco parentis; (2) “[i]t would be significantly 

detrimental to the child to remain or be placed in the care of either legal 

parent who wishes to keep or acquire legal decision-making[;]” (3) it has 

been one year since the last legal decision-making or parenting time order, 

unless there is reason to believe the “present environment may seriously 

endanger the child’s physical, mental, moral or emotional health[;]” and (4) 

one of the child’s parents is deceased or the parents are not married to each 

other or a petition for dissolution or separation is pending when the petition 

is filed. A.R.S. § 25-409(A). 
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At the time of the amended petition, both parents were stationed overseas, 

and Grandmother was caring for the child. In May 2018, when Father left 

Mother and the child in North Carolina, Mother and the child moved in 

with Grandmother in Arizona. Grandmother also alleged that even when 

Mother lived with her, Grandmother primarily cared for the child and 

provided for his daily needs. 

¶16 Father contends that he and Mother are fit parents, so 

Grandmother cannot stand in loco parentis. Father also focuses on the 

superior rights of a parent. To allege in loco parentis standing, a third-party 

need not show they have a parental relationship that replaces that of the 

legal parents or that their relationship is superior to the legal parents. Riepe 

v. Riepe, 208 Ariz. 90, 93, ¶ 10 (App. 2004); A.R.S. § 25-401(1). Grandmother’s 

amended petition sufficiently alleged that she stood in loco parentis to the 

child. 

¶17 Next, Grandmother alleged that it would be significantly 

detrimental to allow the child to remain in the care of either parent. She 

specifically alleged that when the child lived with the parents they left 

loaded firearms within his reach, did not properly care for his diaper rash, 

and he suffered “bumps and bruises.” She also asserted that the parents did 

not provide adequate food, proper food for the child’s allergies, regular 

financial support, or medical insurance. Grandmother alleged that it would 

be significantly detrimental to send the child to live with parents who 

frequently move, sometimes overseas, depending on their military 

assignments. Finally, she alleged that it would be significantly detrimental 

to remove the child from her stable home and care given their strong bond 

and the child’s request that Grandmother promise not to “‘give him away’ 

again.” 

¶18 Father disputes Grandmother’s allegations and questions her 

credibility. Many facts Father cites are irrelevant because they occurred 

after the court denied the amended petition. But more importantly, “[§] 25-

409(A) does not require that the initial petition contain uncontroverted

evidence of significant detriment for the court to consider a third party’s 

petition for legal decision-making.” Chapman, 243 Ariz. at 242, ¶ 24. The 

Chapman court found that the pleading requirement for a petition under § 

25-409(A) was like that in Arizona Rule of Civil Procedure 12(b)(6), and the 

court is required to assume the truth of all well-pled factual allegations in 

the petition. Id. Applying that standard, Grandmother’s amended petition 

sufficiently alleged that placing the child in the parents’ care would be 

significantly detrimental. Therefore, we vacate the summary denial of the 

amended petition and remand for reconsideration on the merits.
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¶19 Given this resolution, we need not address Grandmother’s 

arguments that the summary denial deprived her of due process, that the 

parents’ stipulation was invalid, or that the stay was improper. The 

stipulation was signed after the amended petition for third-party legal 

decision-making and is not relevant in deciding whether the petition 

contained sufficient allegations. Further, because the stay was lifted, 

arguments relating to it are moot.

ATTORNEYS’ FEES AND COSTS ON APPEAL

¶20 We deny Father’s request for attorneys’ fees on appeal under 

§ 25-324 because we lack any information about the parties’ financial 

resources. Grandmother is entitled to her costs on appeal upon compliance 

with ARCAP 21. See A.R.S. § 12-342. 

CONCLUSION

¶21 We vacate the court’s order summarily denying 

Grandmother’s amended petition for third-party legal decision-making

and remand for the court to consider the merits of Grandmother’s amended 

third-party petition for legal decision-making.