IN RE: the Matter of: JON TYLER HOLLAND (2025)

OPINION

¶1 Jon Tyler Holland (“Father”) challenges the superior court's third-party legal decision-making and placement award of his child (“Child”), to his mother and Child's grandmother, Verner Holland (“Grandmother”). We conclude that the court erred by finding under A.R.S. § 25-409(A)(2) that awarding Father legal decision-making authority and placement would be “significantly detrimental” to Child even though it did not find that Father was unfit as a parent. In so concluding, we hold that to find that placing a child with their legal parent would be “significantly detrimental” to the child under A.R.S. § 25-409(A)(2), the court must find that the legal parent's continued unsupervised care or exercise of legal decision-making authority over the child would harm the child.

¶2 We also conclude that the court erred by failing to presume that awarding Father legal decision-making authority was in Child's best interests and to determine whether Grandmother presented clear and convincing evidence to overcome that presumption. See A.R.S. § 25-409(B). When the court determines whether a petitioner has shown by clear and convincing evidence that a legal decision-making award to the parent would not serve the child's best interests, the court's inquiry is solely concerned with the parent. See A.R.S. § 25-409(B). In other words, when the court analyzes the A.R.S. § 25-403(A) best-interests factors, the court does not determine whether they favor the parent or a third party but rather whether they rebut the presumption that the parent should exercise legal decision-making authority. Id. We further clarify that not all A.R.S. § 25-403(A) factors are equally appropriate in an A.R.S. § 25-409(B) inquiry because several factors do not apply to or are less relevant in disputes between parents and third parties.

FACTS AND PROCEDURAL BACKGROUND

¶3 In 2016, when Child was nearly two years’ old, Father and Child's mother divorced. Although the court granted Mother sole legal decision-making authority (with Father awarded supervised parenting time), she struggled with substance abuse and abandoned Child several months later to Grandmother and Grandmother's significant other. Child has lived with them ever since.

¶4 For several years, Father's visitation with Child was sporadic. He visited her three times for about half to a full week between 2017 and 2021, moving to Missouri during this time. There, he married and had two children with his wife.

¶5 In 2022, Child began spending significantly more time with Father. That year, Child spent eight weeks of the summer and her Christmas school break in Missouri with Father's family. In summer 2023, Child returned to Missouri, and Father petitioned to modify the court's 2016 legal decision-making and parenting time award, seeking sole legal decision-making authority. Grandmother intervened, petitioning for Child's return and third-party legal decision-making authority under A.R.S. § 25-409(A).

¶6 After an evidentiary hearing, the court determined that Grandmother had proved that she stood in loco parentis to Child and that placing Child with Father would be significantly detrimental. See A.R.S. § 25-409(A)(1)–(2). The court found that Father is a “good man” and well-employed. But it found Child's placement with him would be significantly detrimental because of his long absence from her life and the lack of a “smooth” transition from Grandmother's care to his, given her adjustment and attachment to Grandmother.

¶7 The court next considered all the best-interests factors under A.R.S. § 25-403(A) “[i]n making the legal decision-making and parenting time determination.” In so doing, the court was mindful that “it is in a child's best interest: (1) To have substantial, frequent, meaningful and continuing parenting time with both parents [; and] (2) To have both parents participate in decision-making about the child.” (Quoting A.R.S. § 25-103(B).) The court then determined whether each A.R.S. § 25-403(A) best-interests factor favored Father or Grandmother.

¶8 The court found that Child has a good relationship with Father, her stepmother, and her half-siblings, and that the school she would attend in Missouri is appropriate. But throughout its findings, the court emphasized Child's long, loving relationship with Grandmother and her adjustment to her home and school in Arizona. See A.R.S. § 25-403(A)(1)– (3). The court also emphasized Father and Grandmother's strained relationship, finding that Father limited Child's contact with Grandmother. A.R.S. § 25-403(A)(6). Ultimately, the court found that the A.R.S. § 25-403(A) best-interests factors favored Grandmother. The court also found under A.R.S. § 25-408 that relocation to Missouri would be significantly detrimental to Child, thus granting Grandmother sole legal decision-making authority with parenting time given to Father.

¶9 Father timely appealed the third-party legal decision-making order, and we have jurisdiction. A.R.S. § 12-2101(A)(1).

DISCUSSION

¶10 Father argues the family court's parenting time award violates his fundamental parental rights and misapplies the requirements of A.R.S. § 25-409. Specifically, he argues that the court wrongly found under A.R.S. § 25-409(A)(2) that granting him legal decision-making authority would be “significantly detrimental” to Child and failed to presume that he acts in Child's best interests. He contends that the significant-detriment element must be an “extremely high burden to meet” and requires more than a simple determination that the child would be better off in the third party's care and control. Grandmother responds that A.R.S. § 25-409(A) contains only pleading requirements and that the court considers the merits of the third-party petition under A.R.S. § 25-409(B).

¶11 “We review the family court's interpretation and application of A.R.S. § 25–409 de novo.” Chapman v. Hopkins, 243 Ariz. 236, 240 ¶ 14 (App. 2017). When analyzing statutes, we apply “fundamental principles of statutory construction, the cornerstone of which is the rule that the best and most reliable index of a statute's meaning is its language.” Bridges v. Nationstar Mortg. L.L.C., 253 Ariz. 532, 535 ¶ 14 (2022) (quoting Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471 (1991)).

I. A.R.S. § 25-409(A)–(B) in Overview

¶12 The parties’ dispute over the meaning and standard of proof of “significantly detrimental” stems at least in part from confusion about the interrelationship between A.R.S. § 25-409(A) and A.R.S. § 25-409(B). The family court considers a third-party petition for legal decision-making authority and placement in two stages. See A.R.S. § 25-409(A)–(B).

¶13 First, the petitioner must plead that (1) she stands in loco parentis to the child, (2) “[i]t would be significantly detrimental to the child to remain or be placed in the care of” the legal parent, (3) no court has entered a legal decision-making or parenting time order in the past year, and (4) the child's legal parents are not married to each other. See A.R.S. § 25-409(A). In considering this pleading, the court determines “whether the third party's ‘initial pleading’ contains sufficient factual allegations to establish the four statutory elements” under A.R.S. § 25-409(A), Hustrulid v. Stakebake, 253 Ariz. 569, 578 ¶ 28 (App. 2022), summarily denying the petition if it does not establish these elements, Chapman, 243 Ariz. at 240 ¶ 16. “Section 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.” Id. at 242 ¶ 24.

¶14 Then, if the pleading satisfies that standard, the court holds an evidentiary hearing to determine the merits of the petition under A.R.S. § 25-409(B). Hustrulid, 253 Ariz. at 578 ¶ 28. “[N]otwithstanding the A.R.S. § 25-409(A) allegations established by the petition,” Chapman, 243 Ariz. at 241 ¶ 17, the court must still presume that “awarding legal decision-making to a legal parent serves the child's best interests because of the physical, psychological and emotional needs of the child to be reared by a legal parent,” A.R.S. § 25-409(B); see Chapman, 243 Ariz. at 241 ¶ 17. At the hearing, the court's ultimate question is whether the petitioner has rebutted this presumption with “proof showing by clear and convincing evidence that awarding legal decision-making to a legal parent is not consistent with the child's best interests.” A.R.S. § 25-409(B).

¶15 This Court has wavered on whether this showing includes the elements in A.R.S. § 25-409(A) such as “significantly detrimental.” In Chapman, this Court held that “[t]he [superior] court must consider whether significant detriment is established only when determining whether to summarily dismiss a petition for legal decision-making and parenting time by a non-parent or to allow it to proceed for consideration on the merits.” 243 Ariz. at 243 ¶ 26 (emphasis added). But in Hustrulid, this Court clarified that this does not mean that the court “could not revisit the ‘merits’ of significant detriment at the evidentiary hearing.” 253 Ariz. at 577 ¶ 26. Rather, “[t]he merits of a third-party's petition for legal decision-making include each of the elements in § 25-409(A) along with the requirement that the third party rebut the § 25-409(B) presumption.” Id. Thus, the Hustrulid court held that “if a court does not summarily deny a third-party's petition for legal decision-making, it must hear the parties’ evidence before deciding whether the petitioner has proved each of the § 25–409(A) elements along with the presumption in § 25–409(B).” Id.

¶16 To the extent that Chapman or Hustrulid say that the court either cannot or must separately consider the A.R.S. § 25-409(A) elements when determining whether the petitioner has rebutted the presumption under A.R.S. § 25-409(B), both interpretations are incongruous with the statute's operation. “Once the court decides the pleadings are sufficient,” it “proceeds to examine the merits of the custody petition.” Downs v. Scheffler, 206 Ariz. 496, 500 ¶ 11 (App. 2003). The merits include the presumption under A.R.S. § 25-409(B) that the parent should exercise legal decision-making authority. Id. at 500–01 ¶¶ 11, 17; Hustrulid, 253 Ariz. at 577 ¶ 26. But we read “statutes as a cohesive whole so that ‘no word or provision is rendered superfluous.’ ” State v. Serrato, CR-24-0264-PR, 2025 WL 1387711, at *3 ¶ 16 (Ariz. May 14, 2025) (quoting In re Riggins, 257 Ariz. 28, 31 ¶ 12 (2024)). If the significant detriment finding alone would determine the best-interests analysis under A.R.S. § 25-409(B), then a best-interests analysis becomes unnecessary. Conversely, if the court may reach a best-interests determination contrary to its significant detriment finding, then the A.R.S. § 25-409(A) analysis is unnecessary to resolve the best-interests presumption.

¶17 To avoid rendering either A.R.S. § 25-409(A) or A.R.S. § 25-409(B) superfluous, Serrato, CR-24-0264-PR, at *3 ¶ 16, we harmonize the apparent conflict between Chapman and Hustrulid as follows. The superior court does not separately or independently consider the “significantly detrimental” element at the merits stage when determining whether the petitioner has rebutted the A.R.S. § 25-409(B) presumption. Instead, significant detriment is a factor the court considers within its determination of whether the petitioner has proven that awarding the legal parent legal decision-making authority is contrary to the child's best interests.

¶18 Specifically, our decisions have made clear that “to determine whether a petitioner has overcome the statutory presumption in favor of a custody award to a legal parent, the court is obliged to consider the best interests of the child.” Downs, 206 Ariz. at 500 ¶ 11. And “[i]n determining whether clear and convincing evidence rebuts the presumption, the family court should consider all factors relating to the child's physical and emotional well-being.” Chapman, 243 Ariz. at 241 ¶ 18. “These factors include the relevant best interests factors enumerated in A.R.S. § 25–403(A).” Id. They also include the A.R.S. § 25-409(A) elements. See Downs, 206 Ariz. at 500 ¶ 13 (The court may “base its custody determination on factors other than those set forth in § 25-403(A).”). As observed in Hustrulid, “analysis of significant detriment and best interests will often overlap.” 253 Ariz. at 578 ¶ 28.

¶19 Thus, in determining whether the petitioner has rebutted the A.R.S. § 25-409(B) presumption, the court must consider significant detriment and the other A.R.S. § 25-403(A) elements to the extent they affect the child's best interests. And because significant detriment is simply a component of the A.R.S. § 25-409(B) analysis, contrary to both Father's and Grandmother's arguments, the court does not need to find significant detriment by a standard of proof at the merits stage. Rather the court's ultimate finding is only whether the petitioner has rebutted the best-interests presumption under A.R.S. § 25-409(B) by clear and convincing evidence. Because Father does not argue that the court wrongly failed to summarily dismiss Grandmother's petition, the court could properly consider significant detriment within its A.R.S. § 25-409(B) analysis.

II. Significant Detriment

¶20 Beyond arguing that finding significant detriment requires an “extremely high” burden, Father also argues that the court construed the meaning of significant detriment too broadly. He contends “significantly detrimental” means more than “uproot[ing Child] from her home with Grandmother,” but rather is equivalent to finding a child dependent. See A.R.S. § 8-201(15) (defining a dependent child).

¶21 Although A.R.S. § 25-409 does not define “significantly detrimental,” both the statute and our decisions clarify that the meaning of the element parallels the meaning of “detriment” within the parental rights termination context. “Significantly detrimental” is not stated in isolation under A.R.S. § 25-409(A)(2). The court does not abstractly consider if the child will receive a significant detriment at any time from any person, but rather it considers specifically whether the child will receive a significant detriment when she “remain[s] or [is] placed in the care of [the] legal parent.” A.R.S. § 25-409(A)(2); see Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019) (“We interpret statutory language in view of the entire text, [and] consider[ ] the context.”). This means that placement with and legal decision-making by the legal parent either would always be “significantly detrimental” to the child or it would never be. Consequently, the family court cannot award joint legal decision-making authority to a legal parent and a third party because “[i]t is inconsistent for a third party to allege a significant detriment if the child remains with the parent while also seeking joint legal decision-making that would leave the child in the parent's care.” Hustrulid, 253 Ariz. at 576 ¶ 18. Thus, for the court to find that awarding the legal parent legal decision-making authority would be “significantly detrimental” to the child, the court must find that the child would be harmed by any amount of time in the unsupervised care of the legal parent.

¶22 Our decisions addressing best-interests determinations from petitions to terminate parental rights confirm this interpretation. When the State moves to terminate a parent's right to care and custody of their child, the State may prove termination is in the child's best interests by showing that “the child will be harmed if severance is denied.” Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150 ¶ 13 (2018). A court may find a child would be “harmed by the continuation of the [parent-child] relationship,” Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990), if continuation of the relationship “detrimentally affects the child's well-being,” Pima Cnty. Juv. Action No. S-2460, 162 Ariz. 156, 158 (App. 1989) (emphasis added); see also Sheena W. v. Dep't of Child Safety, 254 Ariz. 296, 301 ¶ 23 (App. 2022) (as amended) (continuing the parent-child relationship would be a “detriment” to child because the mother “is unable or unwilling to stop the physical abuse, despite numerous services being available to her”), vacated in part on other grounds, Sheena W. v. DCS/B.W., CV-23-0003-PR, 2023 WL 2782747 (Ariz. Apr. 4, 2023). Thus, “significantly detrimental” means that the child will be harmed by the parent's continued care or exercise of legal decision-making authority over the child.

¶23 Here the court found that “it would be significantly detrimental to uproot [Child] from all that she has known: first and foremost—[Grandmother and her significant other], her home, school and community and place her with [Father] and his new family in Missouri.” But the court did not find that Child would be harmed by remaining or being placed in the care of Father. In fact, it found that Father “is entitled to reasonable parenting time to ensure that the minor child has substantial, frequent, meaningful and continuing contact with the parent unless the court finds, after a hearing, that parenting time would endanger the child's physical, mental, moral or emotional health.” The court did not find that Father is unfit or would endanger Child and so awarded him approximately two months of unsupervised parenting time. The court's finding that Father's care would be “significantly detrimental” to Child cannot be squared with the finding of fitness implicit in awarding Father approximately two months’ parenting time. For that reason, the court erred in this determination.

¶24 The court's order does not demonstrate how it considered or weighed significant detriment within its overall analysis when it awarded Grandmother placement and legal decision-making authority. Specifically, the court first separately found significant detriment under A.R.S. § 25-409(A)(2) but then incorporated that finding and analysis into its findings about the A.R.S. § 25-403(A) best-interests factors. Because we cannot determine to what extent the court's erroneous significant detriment finding affected its A.R.S. § 25-409(B) presumption analysis, we vacate and remand for the court to conduct a new A.R.S. § 25-409(B) analysis.

III. Best Interests Presumption

¶25 Although the court's error under A.R.S. § 25-409(A) is sufficient to vacate its order, we also address the court's A.R.S. § 25-409(B) analysis because it must conduct a new A.R.S. § 25-409(B) determination on remand. Father argues that the court failed to presume under A.R.S. § 25-409(B) that he will act in Child's best interests and wrongly “pitted [him] against Grandmother's decisions as if they were both parents.” Instead, he argues, the court was required to determine solely whether awarding him legal decision-making authority would be “contrary to [Child's] best interests.” He thus contends that the court prioritized the status quo despite its finding that he is a fit parent, thereby preventing him from ever acquiring legal decision-making authority.

¶26 “Parents have a fundamental right, protected by the Fourteenth Amendment, to the ‘care, custody, and control of their children.’ ” Borja v. Borja, 254 Ariz. 309, 313 ¶ 8 (App. 2022) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). The Due Process Clause does not permit a State to “infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Troxel, 530 U.S. at 72–73. Thus, a third-party parental rights petition “does not allow the family court to enter orders that it considers to be in the child's best interests, but rather to use the child's best interests to determine who should make decisions for the child.” Chapman, 243 Ariz. at 241 ¶ 18; see Goodman v. Forsen, 239 Ariz. 110, 114 ¶ 14 (App. 2016) (“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.”), abrogated in part on other grounds, In re Marriage of Friedman & Roels, 244 Ariz. 111, 116 ¶ 19 (2018).

¶27 In other words, when the court conducts its A.R.S. § 25-409(B) analysis, the court does not compare the third party and legal parent to determine which party would better exercise legal decision-making authority. See Goodman, 239 Ariz. at 114 ¶ 14. By its plain language, A.R.S. § 25-409(B) limits the scope of the court's inquiry to whether the legal parent is fit to make medical, educational, and other important decisions for the child. See A.R.S. § 25-409(B) (directing the court to determine whether “awarding legal decision-making to a legal parent is not consistent with the child's best interests” (emphasis added)); A.R.S. § 25-401(3) (defining “legal decision-making” as “the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions”). The statute further emphasizes that the court must focus on the legal parent's fitness by stating that the presumption in favor of the parent is because of “the physical, psychological and emotional needs of the child to be reared by a legal parent.” A.R.S. § 25-409(B) (emphasis added).

¶28 Accordingly, the statute leaves out of the court's consideration under A.R.S. § 25-409(B) whether the third party would better exercise legal decision-making authority than the parent would and whether the child should live with the third party. Indeed, even if the child would benefit from both the legal parent and third party's exercise of legal decision-making authority, the court cannot order joint legal decision making. Thomas v. Thomas, 203 Ariz. 34, 37 ¶ 17 (App. 2002) (“[T]he statute requires the court to make an either-or decision: Either it is in the child's best interest for a legal parent to have custody or it is not.”). Thus, when a court uses the A.R.S. § 25-403(A) factors to guide its A.R.S. § 25-409(B) analysis, the court's sole question is whether the legal parent is fit and will act in the child's best interests. See id. (“The court cannot reasonably find that it is in the child's best interest for a legal parent to have custody and that it is also in the child's best interest for a non-legal parent to have custody.”); Douros v. Morse, 258 Ariz. 546, 551 ¶ 25 (2024) (“Absent a determination of parental unfitness,” a court cannot “give a third party the same rights or visitation schedule as a non-custodial parent.”).

¶29 Here, the court neither presumed awarding Father legal decision-making authority was in Child's best interests nor analyzed whether Grandmother presented clear and convincing evidence to rebut that presumption. Instead, it rotely weighed whether each of the A.R.S. § 25-403(A) factors favored Father or Grandmother, finding at four different points that “[t]his factor favors [Grandmother].” The court then emphasized Child's relationship with Grandmother and compared Child's potential future life with Father to her adjustment to Grandmother's home. The court also analyzed the factors while mindful that the child's best interests entail having “both parents participate in decision-making about the child.” (Quoting A.R.S. § 25-103(B).) But whether Grandmother would better exercise legal decision-making authority is not a question A.R.S. § 25-409(B) asks. Further, Grandmother is not a legal parent, see Sheehan v. Flower, 217 Ariz. 39, 41 ¶ 13 (App. 2007); Downs, 206 Ariz. at 500 ¶ 12, and the court cannot award joint decision-making authority to a legal parent and a third party, Hustrulid, 253 Ariz. at 575 ¶ 16. Ultimately, the court did not determine whether Grandmother rebutted the presumption but substituted its view of who should have care and control of Child. Thus, the court erred in the manner it determined Child's best interests.

IV. Section 25-403(A) Factors

¶30 Finally, we address the court's consideration of A.R.S. § 25-403(A) factors in its A.R.S. § 25-409(B) analysis because the court must consider all relevant best-interests factors. See Chapman, 243 Ariz. at 241 ¶ 18. Here, the court erred in determining Child's best interests by considering A.R.S. § 25-403(A) factors that are either inapplicable or diminished in importance to a third-party legal decision-making dispute.

¶31 A third-party legal decision-making dispute differs from that between two parents in three significant aspects that affect the court's use of A.R.S. § 25-403(A) factors in how it analyzes A.R.S. § 25-409(B). First, the legal parent has a fundamental right to “the care, control, and custody of” their child, while a third party lacks any such fundamental right. Douros, 258 Ariz. at 550 ¶ 18. Second, while under A.R.S. § 25-403(A) the court determines both “legal decision-making and parenting time,” under A.R.S. § 25-409(B) the court's sole inquiry is “legal decision-making.” And third, while an A.R.S. § 25-403(A) proceeding is between two legal parents, the court in an A.R.S. § 25-409(B) proceeding cannot award joint legal decision-making authority. Hustrulid, 253 Ariz. at 575 ¶ 16. Because of these differences, when a court determines whether the third party has rebutted the presumption in favor of the legal parent, the court must focus solely on the legal parent's ability to make decisions in the child's best interests.

¶32 Best-interests findings under A.R.S. § 25-409(B) require an evaluation of the child's bests interests in harmony with the A.R.S. § 25-403(A) best-interests factors. Chapman, 243 Ariz. at 241, 243 ¶¶ 18, 27 (The family court should “consider all factors relating to the child's physical and emotional well-being.”). At the same time, A.R.S. § 25-403(A) factors are “tailored to a custody dispute between two lawful parents with equal, constitutional rights to the care, control, and custody of their children.” Douros, 258 Ariz. at 550 ¶ 18. Thus, “a few of the best interests factors in § 25-403 pertaining to parents may not be implicated in a case in which someone other than a legal parent seeks custody.” Downs, 206 Ariz. at 500 ¶ 12.

¶33 First, because the court must focus solely on the legal parent's fitness to exercise legal decision-making authority, the court cannot consider whether A.R.S. § 25-403(A) factors favor the legal parent or a third party. Rather, because “the statute requires the court to make an either-or decision,” the court must view each factor solely toward determining whether “it is in the child's best interest for a legal parent to have [legal decision-making authority] or it is not.” Thomas, 203 Ariz. at 37 ¶ 17.

¶34 Second, and relatedly, although grandparents often serve an important role in children's lives, a grandparent is not a “parent” under A.R.S. § 25-403(A). See Sheehan, 217 Ariz. at 41 ¶ 13 (holding that a grandparent with visitation rights cannot challenge a relocation because “[w]e have consistently defined ‘parent’ to mean ‘one who begets offspring’ ”); Finck v. Superior Court, 177 Ariz. 417, 421 (App. 1993) (“A ‘parent’ in the domestic relations statutes is a biological or adoptive parent.”). So whenever an A.R.S. § 25-403(A) factor refers to “parent,” the court must consider Father alone and not Grandmother. See A.R.S. § 25-403(A)(1), (2), (6), (7). Here the court emphasized Child's relationship with Grandmother under both A.R.S. § 25-403(A)(1), “[t]he past, present and potential future relationship between the parent and the child,” and A.R.S. § 25-403(A)(2), “the interaction and interrelationship of the child with the child's parent ․ and any other person who may significantly affect the child's best interest.” Although the court may consider Grandmother as an “other person” under A.R.S. § 25-403(A)(2) to the extent that factor affects Father's fitness as a parent, the court may not compare Grandmother with Father under either factor.

¶35 Third, when considering the child's “adjustment to home, school and community,” see A.R.S. § 25-403(A)(3), the court must focus on the legal parent's home, community, and school in which they would enroll their child, not those of the third-party petitioner. A third party, including a grandparent, cannot oppose a legal parent's relocation of their child under A.R.S. § 25-408. See Sheehan, 217 Ariz. at 41 ¶ 13. In other words, fit legal parents can ordinarily move and place their child in a new school even if the child is adjusted to their current home and school. This is not to say the child's adjustment to a third party's home and current school is never relevant in a A.R.S. § 25-409(B) proceeding; for example, a child may have special medical or educational needs that require living in a particular location. But in an A.R.S. § 25-409(B) proceeding, the court begins by presuming the legal parent will act in the child's best interests. Because the court's “role is not to engineer what it perceives to be the optimal situation for the child,” Goodman, 239 Ariz. at 114 ¶ 14, the focus of the court's analysis on A.R.S. § 25-403(A)(3) must be on how the child's adjustment to the legal parent's home and community reflect on the parent's ability to exercise legal decision-making authority.

¶36 Fourth and finally, a court cannot consider which party is more likely to allow contact with the other. Section 25-403(A)(6) commands the court to consider “[w]hich parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent.” But as discussed, Grandmother is not Child's legal parent and thus not encompassed by A.R.S. § 25-403(A)(6). See Sheehan, 217 Ariz. at 41 ¶ 13; Downs, 206 Ariz. at 500 ¶ 12. More fundamentally, if the court determines that giving the legal parent legal decision-making authority would be significantly detrimental to the best interests of the child, then the parent cannot be awarded visitation. See Hustrulid, 253 Ariz. at 576 ¶ 18; Thomas, 203 Ariz. at 37 ¶ 17. But if the court determines that the legal parent is fit, then the parent's choice to deny visitation is afforded “special weight,” see A.R.S. § 25-409(E), and the appropriate recourse for the third party is to seek a visitation order under A.R.S. § 25-409(C). See Douros, 258 Ariz. at 551 ¶ 25 (“Absent a determination of parental unfitness, Arizona's third-party visitation statute cannot be wielded to give a third party the same rights or visitation schedule as a non-custodial parent.”). In either case, the legal parent's decision to allow visitation will not ordinarily be relevant to their parental fitness.

V. Section 25-408 and Child's Best Interests

¶37 Father also argues the court erred by applying A.R.S. § 25-408 to its consideration of custody between a parent and non-parent. In its decision, the court considered whether relocating Child from Arizona to Missouri would be in Child's best interests. See A.R.S. § 25-408(I). But a third party cannot oppose a legal parent's decision to relocate their child. See Sheehan, 217 Ariz. at 41 ¶ 13. Grandmother argues that in Munari v. Hotham, 217 Ariz. 599 (App. 2008), this Court held that the family court may consider the child's best interests in ruling on a petition to relocate, even if a non-parent is involved. That decision, however, focused on already-established grandparent visitation, and this Court noted that “a relocation that is not contested by the non-relocating parent may not be challenged by a grandparent pursuant to A.R.S. § 25-408.” Munari, 217 Ariz. at 602 ¶ 10. Thus, the court may not prohibit Father from relocating Child to Missouri if it finds that Grandmother fails to rebut A.R.S. § 25-409(B)’s presumption in favor of Father.

VI. Attorney's Fees on Appeal

¶38 Both parties request attorney's fees and costs on appeal under A.R.S. § 25-324. In our discretion, we find that neither party took unreasonable positions and therefore decline to award fees. However, because Father is the prevailing party, we award him his reasonable costs upon compliance with ARCAP 21.

CONCLUSION

¶39 We vacate the family court's award in favor of Grandmother and remand for the court to reanalyze Grandmother's third-party petition consistent with this Opinion. If the court finds that Grandmother has failed to rebut the A.R.S. § 25-409(B) presumption in favor of Father, the court shall either award Father sole legal decision-making authority and full parenting time or, if the court deems necessary, shall reconsider Father's petition to modify the 2016 legal decision-making and parenting time award vis-à-vis Mother.

HOWE, Judge: