Ashford v. Hon. Kiley/Swanson

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE SHAUNYETTA D. ASHFORD, ) ) Petitioner, ) ) v. ) ) THE HONORABLE DANIEL J. KILEY, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) HEATHER LEE SWANSON, ) ) Real Party in Interest. ) __________________________________) 1 CA-SA 10-0227 DIVISION ONE FILED: 11/18/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL Maricopa County Superior Court No. FC 2010-003875 DECISION ORDER This special action came on for conference on November 17, 2010, before Presiding Judge Philip Hall, Judges Peter B. Swann and Sheldon H. Weisberg participating. For reasons that follow, we accept jurisdiction, but deny relief. Shaunyetta Ashford ( Mother ) filed this special action seeking relief from an order entered by the Honorable Daniel J. Kiley granting Heather Swanson s Emergency Petition for In loco Parentis Custody of Mother s minor child, pending a trial on her Petition to Establish In Loco Parentis Custody and Child Support. The child has lived with Swanson for approximately five years and Swanson seeks pursuant to A.R.S. § 25-415 (Supp. 2009). custody of her Mother objects and seeks to obtain custody of the child and move her to Texas where Mother now resides. Mother claims the trial court erred in awarding temporary custody to Swanson because there was no evidence that [i]t would be significantly detrimental to the child to remain or be placed in the custody of either of the child s living legal parents who wish to retain or obtain custody. 25-415(A)(2). A.R.S. § She alleges that the court applied an incorrect standard of best interests of the child in granting temporary custody of the child to Swanson pending the trial now set for December 8, 2010. alleges that A.R.S. § 25-403 (Supp. 2009). under Rule 47, Arizona Rules Mother also of Family Law Procedure ( Rule ), temporary orders under A.R.S. § 25-415 are not authorized because the Rule does not refer to that statute. Because Mother has no equally plain, speedy, and adequate remedy by appeal, we accept jurisdiction. Ariz. R. Spec. Act. 1(a); DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 334, 890 P.2d 628, 629 (App. 1995) (interim custody order properly reviewed by special action). Rule 47 provides in part that [a] party seeking temporary orders under A.R.S. §§ 25-315, 25-324, 25-404, 25-408, 25-817 or 25-905, shall do so by filing a separate verified 2 motion with the court setting forth the legal and jurisdictional basis for the motion and specific relief requested. Under A.R.S. § 25-404(A)(2009), [a] party to a custody proceeding may move for a temporary order [and] [t]he court may award temporary custody under Section 25-415 proceeding the standards authorizes by a of § the 25-403 filing nonparent. Thus, after of a a hearing. child contrary custody to Mother s assertion, a nonparent who seeks custody under A.R.S. § 25-415 may petition the court for a temporary custody order under A.R.S. § 25-404. Although Swanson s emergency motion for temporary custody does not refer to A.R.S. § 25-404, the relief requested was to grant her temporary legal custody pending an evidentiary hearing. She also asserts the trial court stated it was holding the initial hearing for temporary relief, not permanent relief. Although the standard of significantly detrimental to the child in A.R.S. § 25-415 applies to the determination of final custody, the trial court applied the correct standard of best interests of the child under A.R.S. § 25-403 determining temporary custody under A.R.S. § 25-404. in The record indicates the court considered the factors set forth in A.R.S. § 25-403(A) and made 403(B). The trial the required court did not custody of the child to Swanson. 3 findings err in under section granting 25- temporary Both attorneys parties fees have incurred requested in this an special award action of costs and pursuant to A.R.S. § 25-324 and Rule 4(g), Arizona Rules of Special Actions. We decline to award them to either party; however, the trial court may consider costs and attorneys fees incurred by Swanson in this proceeding when making its final determination in this matter. IT IS ORDERED that the court of appeals, in the exercise of its discretion, accepts jurisdiction in this special action, but denies relief. ___________________________ SHELDON H. WEISBERG, Judge 4

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