specially concurring.
¶ 47 I concur in vacating the order but do so on separate grounds.
¶ 48 The foundational issue here is whether a same-sex partner (Hochmuth), who is not a “legal parent” as defined under A.R.S. § 25-415, can qualify for visitation rights under that same statute when the child’s mother (Egan) is a fit parent as defined by law. The parties have stipulated that Hoch-muth qualifies. I would reject that stipulation.
¶ 49 Parties have no right to bind the court to a stipulation that defines the law. Word v. Motorola, Inc., 135 Ariz. 517, 520, 662 P.2d 1024, 1027 (1983) (“ ‘Parties cannot stipulate as to the law applicable to a given state of facts and bind the court.’ ” (quoting State Consol. Publ’g Co. v. Hill, 39 Ariz. 163, 167, 4 P.2d 668, 669 (1931))). This is particularly true in the area of custody and visitation where the superior court’s jurisdiction is expressly limited to that which the legislature permits. See A.R.S. § 25-311 (2007) (“The superior court is vested -with original jurisdiction to hear and decide all matters arising pursuant to this chapter and pursuant to chapter 4, article 1 of this title.”); Finck v. Superior Court, 177 Ariz. 417, 421-22, 868 P.2d 1000, 1004-05 (App.1993) (“Before superior court jurisdiction expands in domestic relations actions [regarding] custody or visitation rights ... the legislature must first create those rights____”), approved in part sub nom. Finck v. O’Toole, 179 Ariz. 404, 880 P.2d 624 (1994).
¶ 50 Having rejected the parties’ stipulation, I also reject the argument that our current in loco parentis statute gives Hoch-muth rights. When we construe statutes, we are to give words their common and ordinary meaning “unless the legislature clearly intended a different meaning.” State v. Kor-zep, 165 Ariz. 490, 493, 799 P.2d 831, 834 (1990). The critical passage in the in loco parentis statute is as follows:
“In loco parentis” means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.
A.R.S. § 25 — 415(G)(1) (emphasis added).
¶ 51 At the time of the adoption of the in loco parentis statute, the common and ordinary meaning of the term “parent” under Arizona law was “one who begets or brings forth an offspring ... the natural father and mother.” Sailes v. Jones, 17 Ariz.App. 593, 596, 499 P.2d 721, 724 (1972); see Riepe v. Riepe, 208 Ariz. 90, 100-05, ¶¶ 41-61, 91 P.3d 312, 322-27 (App.2004) (Barker, J., dissenting) (providing extensive authorities showing “Arizona’s longstanding, consistent use of the term ‘parent’ to mean ‘one who begets or brings forth an offspring’ ”). Applying the definition of “parent” that was in place at the time the statute was adopted, “the term ‘par*243ent’ has number and gender limitations: one man as a father and one woman as a mother.” Riepe, 208 Ariz. at 117, ¶ 122, 91 P.3d at 339 (Barker, J., dissenting). Within constitutional restraints, the legislature is free to modify that definition and has done so with regard to adoptive parents but has not done so as to same-sex partners. See A.R.S. § 25-415(G)(2) (defining “legal parent” as “a biological or adoptive parent whose parental rights have not been terminated”); Jackson v. Tangreen, 199 Ariz. 306, 312, ¶ 23, 18 P.3d 100, 106 (App.2000) (“[A]doptive parents’ rights exist only because the legislature created them.”).
¶ 52 By their stipulation the parties effectively seek to insert a more expansive, definition of “parent” into the statute, one that “unhinges the ties of number and gender that pertain to that term.” Riepe, 208 Ariz. at 96, ¶ 25, 91 P.3d at 318 (Barker, J., dissenting). A divided three-judge panel from this court has adopted such an expansive definition with regard to a “stepmother” qualifying as a “parent” for in loco parentis rights even though a fully fit and functioning mother was already in place. Id. at 93, ¶¶ 10-12, 91 P.3d at 315. As set forth in the dissent, that panel was wrong in its interpretation of the statute, just as the parties here are wrong in their stipulation as to the statute:
Examining the statute the legislature passed, “the statute’s policy,” supra ¶¶ 67-76, “the evil it was designed to address,” supra ¶¶ 77-96, “its words,” supra ¶¶ 41-61, “context,” supra ¶¶ 67-76, “subject matter,” supra ¶¶ 62-66, and “effects and consequences,” supra ¶¶ 97-115, all lead to a conclusion that the legislature did not intend to utilize the alternative definition of the term “parent” that eliminated gender and number limitations. See Logan, [v. Forever Living Prods. Int’l., Inc.] 203 Ariz. [191] at 194, ¶ 10, 52 P.3d [760] at 763 [(2002)]. This conclusion is strengthened by the presence of very “serious constitutional problems,” see supra ¶¶ 116-119, if one is to construe the ILP statute with the alternative definition of “parent.” If a construction of the term “parent” which is contrary to our existing law is to be given, it should be stated directly by the legislature, not announced by the court.
Id. at 118, ¶ 125, 91 P.3d at 340 (Barker, J., dissenting).
¶ 53 The question is not the nature of one’s views on family structure, which views are many and varied. Nor is the question which relationships the parties or the court choose to accept to qualify one as being a “parent.” The question is what did the legislature intend and what does our law say. Neither the express terms of the in loco parentis statute, nor application of the rules of statutory construction as applied to it, permit the parties to stipulate to (or the court to accept) a definition of parent that “unhinges the ties of number and gender that pertain to that term.” Id. at 96, ¶ 25, 91 P.3d at 318 (Barker, J., dissenting). As stated above, “[i]f a construction of the term ‘parent’ which is contrary to our existing law is to be given, it should be stated directly by the legislature, not announced by the court,” nor accepted based on a stipulation of the parties. Id. at 118, ¶ 125, 91 P.3d at 340 (Barker, J., dissenting).
¶ 54 Additionally, if Hochmuth (or any other non-parent) was statutorily permitted to seek visitation rights under A.R.S. § 25-415(C), the non-parent should be constitutionally required to meet the heightened standard of proof by clear and convincing evidence that the visitation, if any, proposed by Egan (a fit parent) is not reasonable and not in the child’s best interest. See In re B.S., 205 Ariz. 611, 615-16, ¶¶ 10-14, 74 P.3d 285, 289-90 (App.2003) (applying a “clear and convincing” standard in a judicial bypass proceeding for a minor’s abortion in part because “the judicial bypass procedure impacts a parent’s opportunity to participate in making a significant decision involving his or her minor daughter. The Court has recognized that parents have a fundamental liberty interest in the care, custody, and control of their children. In a proceeding that encroaches on a parent’s ability to exercise this interest, a heightened standard of proof is warranted.”) (citations omitted); see also Roth v. Weston, 259 Conn. 202, 789 A.2d 431, 434 (2002) (“We conclude that the statute is unconstitutional as applied to the extent that *244the trial court, pursuant to the statute, permitted third party visitation contrary to the desires of a fit parent and in the absence of any allegation and proof by clear and convincing evidence that the children would suffer actual, significant harm if deprived of the visitation.”); Stadter v. Siperko, 52 Va.App. 81, 661 S.E.2d 494, 498 (2008) (“The evidence supporting non-parent visitation must therefore be sufficient to overcome the constitutional concerns inherent in the Troxel presumption; a court awarding non-parent visitation over a fit parent’s objection based on the child’s best interests must first find clear and convincing evidence that a ‘denial of visitation would be harmful or detrimental to the welfare of the child.’ ” (quoting Williams v. Williams, 24 Va.App. 778, 485 S.E.2d 651, 654 (1997))). Contra In re Marriage of Winczewski, 188 Or.App. 667, 72 P.3d 1012, 1030 (2003) (Deits, C.J., concurring) (finding constitutional a custody and visitation statute that requires only a “preponderance of the evidence” standard for a non-parent to rebut the presumption that the legal parent acts in the best interest of the child).
¶ 55 For these reasons, the trial court’s order should be vacated.