Finck v. O'Toole ( 1994 )

MARTONE, Justice,

specially concurring.

I share the court’s view that there is no statutory authority to award visitation to a step-grandparent. The court could have reached this result by simply noting the absence of any statutory authorization for an award of visitation to step-grandparents, in contrast to grandparents under A.R.S. § 25-337.01. Instead, the court addresses the question of custody and holds that A.R.S. § 25-331(13), “does not give the trial court authority to determine issues of custody for children not common to the parties of the marriage." Ante, at 406,880 P.2d at 626. In doing so, the court sweeps away Bryan v. Bryan, 132 Ariz. 353, 645 P.2d 1267 (Ct.App.1982), a case in which a stepparent had a true relationship with his stepchild. Although the court’s decision on this point is ambiguous, a stepparent might be able to adopt his stepchild and avoid the awesome consequences of today’s decision. But I agree with Justice Zlaket that the effect of the court’s decision on a stepparent with an established relationship to a stepchild is ripe for legislative inquiry. I also believe that a trial judge may make such temporary orders as are necessary to ensure that a child is not traumatized by the consequences of a dissolution proceeding. See A.R.S. §§ 8-402 to -03.