LEAH JOHNSON MAGEE v. RICK OLSON ASHLEY PAIGE (2025)

OPINION

¶1 Leah Johnson Magee (“Grandmother”) petitioned the family court for “In Loco Parentis, Parenting Time and Legal Decision Making Rights” over her grandchild (“Child”). While her in loco parentis petition was pending, Grandmother alleged in the juvenile court that Child was dependent as to her father, Rick Olson (“Father”). Grandmother then provided notice of her dependency petition to the family court, see Arizona Rule of Family Law Procedure (“Rule”) 5.1(a)(1), moving the court to transfer the proceedings on her third-party petition to the juvenile court. The family court declined to transfer the proceedings.

¶2 Grandmother then petitioned this Court for special action relief, challenging the family court's denial of her motion to transfer the proceedings on her in loco parentis petition to the juvenile court upon notice of her dependency petition in that court. Special action jurisdiction is appropriate because Grandmother has no adequate remedy by appeal, Ariz. R.P. Spec. Act. 12(a), and her “petition raises legal questions of first impression and statewide importance,” Hiskett v. Lambert, 247 Ariz. 432, 435 ¶ 10 (App. 2019); Ariz. R.P. Spec. Act. 12(b). We accept jurisdiction and grant relief because when a party notifies the family court of pending family law and dependency proceedings concerning the same parties, Rule 5.1(a) requires the family court to transfer all proceedings concerning the children to the juvenile court. We therefore vacate the family court's order declining to transfer and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶3 Child's mother died in August 2023, when Child was six years old. In December 2023, Grandmother, Child's maternal grandmother, petitioned the family court for “In Loco Parentis, Parenting Time and Legal Decision Making Rights” (“in loco parentis petition”) over Child. Grandmother did not specify by what authority she sought such rights, but she raised issues of legal decision-making authority over and visitation with Child.

¶4 In March 2024, Grandmother moved for temporary orders. At the hearing, the court denied her request for sole legal decision-making authority but granted her visitation one Saturday per month.

¶5 Before a trial on the petition occurred, Grandmother filed a petition in the juvenile court in October, alleging that Child was dependent as to Father. The Department of Child Safety did not request to substitute in as petitioner, and the court dismissed the dependency at the initial hearing. She moved to alter and amend the dismissal of the dependency. In January 2025, the court denied the motion, finding that “the child is not at risk of abuse or neglect” and “this is not a juvenile case.”

¶6 In April 2025, Grandmother again petitioned the juvenile court to find Child dependent as to Father. She then provided notice to the family court under Rule 5.1 of her pending dependency petition. In the notice, she also moved for the family court to vacate the trial on her in loco parentis petition, by then set for April 24, 2025, “until the dependency matter [wa]s resolved.”

¶7 The family court denied the motion, finding that the main issue in the dependency related to Father's “fitness as a parent and if parental rights should be severed” and that was “the issue that the Juvenile Division ha[d] jurisdiction over, absent a transfer of the Family Division issues (legal decision-making and parenting time) to the Juvenile Division.” It emphasized that Rule 5.1 states that the juvenile court “will only hear legal decision-making and parenting time issues, if the Family Division proceedings are transferred to the Juvenile Division.” The family court concluded that neither it nor the juvenile court had “issued an order transferring the legal decision-making and parenting time issues raised in the Family Division to the Juvenile Division” and therefore, “[t]he issues of legal decision-making and parenting time remain in the Family Division.”

DISCUSSION

¶8 Grandmother argues the family court wrongly interpreted Rule 5.1 when it denied her motion to transfer and vacate the trial on her in loco parentis petition. Specifically, she argues the court erred by interpreting the rule “to mean that the transfer of the proceedings to the juvenile division is not automatic and requires leave of the family court.” Instead, she contends that “once the required notification is sent to the family court, they must defer proceedings to the juvenile court's jurisdiction.” Although given the opportunity, Father has not responded to Grandmother's special action petition.

¶9 “We interpret court rules according to the principles of statutory construction.” Phillips v. O'Neil, 243 Ariz. 299, 301 ¶ 8 (2017) (quoting State v. Aguilar, 209 Ariz. 40, 47 ¶ 23 (2004)). Thus, we “interpret rules of procedure by their plain meaning and we read them in conjunction with each other and harmonize them whenever possible.” State v. Greene, 255 Ariz. 37, 57 ¶ 76 (2023) (quoting State v. Tillmon, 222 Ariz. 452, 454 ¶ 8 (App. 2009)). If, however, “the text of the rule is ambiguous, we utilize other methods to determine the meaning of the text, such as the statute's ‘subject matter, and historical background; its effects and consequences; and its spirit and purpose.’ ” Kelly v. Blanchard, 255 Ariz. 197, 200 ¶ 11 (App. 2023) (quoting State v. Gray, 239 Ariz. 475, 477 ¶ 6 (2016)). In interpreting rules, we give meaning to “each word, phrase, clause, and sentence so that no part of the [rule] will be void, inert, redundant, or trivial.” Jurju v. Ile, 255 Ariz. 558, 562 ¶ 22 (App. 2023) (quoting Ariz. State Univ. Bd. of Regents v. Ariz. State Retirement Sys., 242 Ariz. 387, 389 ¶ 7 (App. 2017)). Finally, section headings “cannot undo or limit that which the text makes plain,” Phillips, 243 Ariz. at 299 ¶ 12 (quoting Bhd. of R.R. Trainmen v. O.R. Co., 331 U.S. 519, 528–29 (1947)), but may be used to aid our interpretation if the text is ambiguous, see id.

¶10 Rule 5.1(a) states:

Transfer to Juvenile Division. If pending family law and dependency proceedings concern the same parties, the juvenile division has jurisdiction over the children.

(1) Notice. The parties must notify the family division of a pending dependency proceeding.

(2) Effect of Transfer. If the proceedings are transferred, the juvenile division will hear legal decision-making and parenting time issues until the dependency is dismissed or the juvenile division defers jurisdiction to the family division.

Read in isolation, the rule's plain language is arguably ambiguous because it does not specify whether the proceedings automatically transfer to the juvenile court once the juvenile court obtains jurisdiction. Instead, the rule frames the transfer of proceedings conditionally. Ariz. R. Fam. Law. P. 5.1(a)(2) (“If the proceedings are transferred”) (emphasis added). To the extent the text of Rule 5.1(a) is ambiguous, its headings and subheadings support the interpretation that the family court must transfer proceedings over children to the juvenile court once provided notice of a pending dependency petition. The rule places “the juvenile court has jurisdiction over the children” under the heading “Transfer to Juvenile Division.” Ariz. R. Fam. Law P. 5.1(a).

¶11 Thus, the rule explicitly contemplates the family court's transfer of the proceedings to the juvenile court. Further, for the family court to have discretion to deny transferring the proceedings, a motion would have to exist for the court to rule on. But the rule does not require the petitioner to move for transfer. Instead, the rule requires only notice. Ariz. R. Fam. Law P. 5.1(a)(1). The family court interpreted the phrase “[i]f the proceedings are transferred” as giving the court discretion, but this phrase refers only to the “Effect of Transfer” after the court has received “notice.” Ariz. R. Fam. Law P. 5.1(a)(1)–(2).

¶12 In other words, the phrase “[i]f the proceedings are transferred” simply recognizes that the filing of a dependency does not itself automatically transfer the family law proceedings over children to the juvenile court. Rather, for the proceedings to transfer, the petitioner must provide the family court with notice. Ariz. R. Fam. Law P. 5.1(a)(1). If the petitioner fails to provide the court with notice, or chooses not to, then the family court will retain jurisdiction. Indeed, the phrase “[i]f the proceedings are transferred” is placed under the subheading “Effect of Transfer,” a heading that necessarily describes actions that occur after and not before the proceedings are transferred. See Ariz. R. Fam. Law P. 5.1(a)(2). Thus, this phrase does not provide the family court with discretion to decline transfer upon proper notice.

¶13 Rule 5.1(b)’s grant of discretion to the juvenile court to defer jurisdiction back to the family court in certain circumstances after transfer further shows the family court's lack of discretion to deny transfer upon notice. Rule 5.1(b) provides that the juvenile court “may refer the matter to the family division for further proceedings,” if it “determines that a change of legal decision-making or parenting time is appropriate.” (Emphasis added.) “May” indicates discretion. See State v. Simental, __ Ariz. __, __ ¶ 10, 563 P.3d 169, 172 (App. 2025) (“The use of the word ‘may’ generally indicates permissive intent while ‘shall’ generally indicates a mandatory provision.” (cleaned up)). But in promulgating Rule 5.1(a), our supreme court did not use “may.” See Est. of Dominguez v. Dominguez, __ Ariz. __, __ ¶ 17, 567 P.3d 81, 86 (2025) (noting that “the legislature's failure to include similar limiting language in a related statute demonstrates that the legislature purposefully omitted that language” (citation omitted)); Columbus Life Ins. Co. v. Wilmington Tr., N.A., 255 Ariz. 382, 386 ¶ 18 (2023) (highlighting that statutes explicitly voiding certain contracts show “that the legislature knows how to deem a contract void when it so wishes and did not do so” in the statute at issue). Thus, the absence of “may” from Rule 5.1(a) indicates the family court's lack of discretion to transfer upon notice.

¶14 Arizona Rule of Juvenile Procedure 323 parallels Rule 5.1's structure and confirms both that (1) the juvenile court will decide family law matters about children upon notice and (2) transfer to the juvenile court is automatic upon notice. Juvenile Rule 323 states:

(a) Transfer to Juvenile Division. If pending family law and dependency proceedings concern the same parties, the judge presiding over the juvenile case makes decisions concerning the children.

(1) Notice. The parties must notify the family division of a pending dependency proceeding.

(2) Effect of Transfer. If the proceedings are transferred, the juvenile division will hear custodial issues until the dependency is dismissed or the juvenile division defers jurisdiction to the family division.

Ariz. R.P. Juv. Ct. 323. Both the structure and language of Juvenile Rule 323 and Rule 5.1 are almost identical. Both are divided into “Transfer to Juvenile Division”/”Notice”/”Effect of Transfer” subheadings. And, like the family rule, Juvenile Rule 323 provides for “the judge presiding over the juvenile case [to make] decisions concerning the children” automatically upon notice to the family court without any motion, decision, or order. Id. Further, whereas Juvenile Rule 323(a) provides discretion to the juvenile court to “defer[ ] jurisdiction to the family division” after transfer to the juvenile court, the rule provides no ability for the family court to block transfer or order remand from the juvenile court. We also seek to harmonize court rules, see Greene, 255 Ariz. at 57 ¶ 76, “so that no part of the [rule] will be void, inert, redundant, or trivial,” Jurju, 255 Ariz. at 562 ¶ 22. Were we to interpret Rule 5.1 as providing the family court discretion to deny transfer to the juvenile court, Juvenile Rule 323(a)’s command would be rendered void that “the judge presiding over the juvenile case makes decisions concerning the children.” Thus, jurisdiction over matters involving children must automatically transfer to the juvenile court once the party provides the family court with notice of pending family court and dependency proceedings involving the same parties.

¶15 Finally, the history of Rule 5.1 confirms our interpretation. In 2019, Rule 5.1 was amended to its current version. The prior version stated:

When a pending family law proceeding and a pending dependency proceeding concern the same parties, any party may file a motion to consolidate the proceedings. The court may on its own motion consolidate the proceedings. The motion shall be filed in the juvenile division and a copy shall be provided to the assigned family law division. The assigned juvenile division shall rule on the motion to consolidate. Legal decision-making and parenting time issues will be litigated in the juvenile division unless the juvenile division defers jurisdiction to the assigned family law division.

Ariz. R. Fam. Law P. 5.1(A) (2018) (emphasis added). Under the prior rule, the petitioner had to move the juvenile court to consolidate its proceedings, which would rule on the motion. Thus, the juvenile court had discretion to decline consolidating the actions. See Simental, 563 P.3d at 172 ¶ 10 (“The use of the word ‘may’ generally indicates permissive intent.” (cleaned up)). But the current rule removes the requirements that the petitioner move the court to consolidate and that the court rule on the motion. See Ariz. R. Fam. Law P. 5.1(a). Regardless, even under the old rule, the juvenile court and not the family court would rule on the motion. So, before the rule change, the family court still lacked discretion to consolidate or transfer the proceedings because the petitioner was never required to move the family court.

¶16 Here, Grandmother's in loco parentis petition and dependency petition both concern Child, and Grandmother provided the family court with notice of the dependency petition. Therefore, because the family court lacks discretion to decline to transfer proceedings concerning children to the juvenile court once provided notice of a dependency petition, the family court must transfer its proceedings on Grandmother's in loco parentis petition to the juvenile court.

¶17 But the transfer of proceedings on Grandmother's in loco parentis petition to the juvenile court should not leave resolution of the petition in limbo. The purpose of Rule 5.1 is not to allow gamesmanship between parties over children but rather to expeditiously resolve simultaneous dependency and legal decision-making/parenting time proceedings. See The Hon. Rebecca Berch (Ret.), Mark Meltzer & Gregg Woodnick, 2019 Revisions to the Family Law Rules, Ariz. Att'y, January 2019, at 20, 23 (“Rule 5.1 eliminates the guesswork by clearly assigning jurisdiction to the juvenile court. Under old Rule 5.1, cases could linger for months with neither the family nor the juvenile division taking ownership of decision-making and parenting time orders. Now the juvenile division clearly has the authority and obligation either to enter orders or unequivocally defer to family court.”). Thus, once the family proceedings are transferred to the juvenile court, the juvenile court decides any legal decision-making and parenting time issues while it rules on the dependency petition. See Ariz. R. Fam. Law P. 5.1(a)(2) (“If the proceedings are transferred, the juvenile division will hear legal decision-making and parenting time issues until the dependency is dismissed or the juvenile division defers jurisdiction to the family division.”); Ariz. R.P. Juv. Ct. 323(a). But until the juvenile court dismisses the dependency or “defers jurisdiction to the family division,” solely the juvenile court must resolve Grandmother's in loco parentis petition. Ariz. R. Fam. Law P. 5.1(a)(2); see Ariz. R.P. Juv. Ct. 323(a)(2); see also Ariz. R. Fam. Law P. 5.1(b) (“Referral to Family Division. If the juvenile division determines that a change of legal decision-making or parenting time is appropriate, it may refer the matter to the family division for further proceedings.”); Ariz. R.P. Juv. Ct. 323(b) (stating the same).

CONCLUSION

¶18 We vacate the family court's order declining to transfer its proceedings to the juvenile court on Grandmother's in loco parentis petition and remand for proceedings consistent with this opinion.

HOWE, Judge: