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Arizona Child Custody Jurisdiction: A Child’s Temporary Versus Permanent Relocation to Arizona

Thu 27th Apr, 2023 Arizona Child Custody Laws

If you are considering obtaining an Arizona child custody order, and either you or your spouse has moved to Arizona from a different state or country, you will need to know the laws concerning Arizona child custody jurisdiction.

Fortunately, the Arizona Court of Appeals in the published decision in Antonetti vs. Westerhausen provided insight into determining if Arizona has jurisdiction to decide a child custody matter.

Father, an Italian citizen, moved to Tunisia in 2007. Mother, an American citizen, moved to Tunisia in 2013. Father and Mother began a relationship in Tunisia in 2013. In March 2018, Father and Mother had a child. The child, having been born to an Italian and American citizen, was granted dual citizenship as an Italian and American citizen.

In February 2020 Father, Mother, and Child flew to Italy for a vacation. During their vacation the Coronavirus pandemic began, and the Italian government responded by implementing travel restrictions. Soon after, Tunisia implemented international travel restrictions and closed its borders to international travel.

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In April 2020 Mother and Child were given the opportunity to travel to the United States on a repatriation flight reserved for United States citizens only. Father, who was not an American Citizen, could not travel on the repatriation flight with Mother and Child to America. Regardless, Mother and Child traveled to the United States without Father.

Upon entering the United States, Mother began residing in Arizona. Father returned to Tunisia on June 27, 2020 while Mother continued living in Arizona. Mother continued to live in Arizona since April 13, 2020.

On November 3, 2020, Mother petitioned the Arizona Superior Court to establish paternity, legal decision-making, parenting time, and child support. Neither party contested paternity of Child.

Mother requested sole legal decision-making for Child and sole physical custody of Child, granting Father supervised parenting time. Mother alleges that she relocated to Arizona with Child, so they could escape domestic violence perpetrated by Father.

Father was served with Mother’s petition on January 12, 2021. Father responded by moving to dismiss Mother’s petition for lack of subject matter jurisdiction.

Subject Matter Jurisdiction Is Required for a Court to Determine Child Custody

Subject matter jurisdiction refers to the ability of a court to hear a specific type of action. Unless a court has subject matter jurisdiction over the issue being presented to it, the court has no legal authority to decide the issue.

In child custody cases, subject matter jurisdiction is granted to courts through the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”).

In a nutshell, the UCCJEA was created to prevent conflicting child custody orders from being issued by courts in different states and countries. Arizona has codified provisions of the UCCJEA, including its jurisdictional requirements, into statutes.

Arizona Child Custody Jurisdiction Laws

Arizona Child Custody Jurisdiction

In Arizona, the relevant statute for establishing subject matter jurisdiction over child custody matters is A.R.S. § 25-1031. The statute states, unless an emergency enumerated in A.R.S. § 25-1034 exists, Arizona courts have subject matter jurisdiction over an initial child custody determination only if either of the following two requirements are met:

  1. Arizona is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; or,
  2. A court of another state does not have jurisdiction under (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 25-1037 (inconvenient forum) or 25-1038 (misconduct) and both of the following are true:
    • The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have significant connection with this state other than mere physical presence.
    • Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.

An initial child custody determination is “the first child custody determination concerning a particular child.” See A.R.S. § 25-1002(8). “The ‘home state’ … is the state in which a child has lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding, including any period during which that person is temporarily absent from that state.” See A.R.S. § 25-1002(7)(a).

But, “If a child is less than six months of age, the [home state is the] state in which the child lived from birth with a parent or person acting as a parent, including any period during which that person is temporarily absent from that state.” See A.R.S. § 25-1002(7)(b).

Likewise, Arizona courts “shall treat a foreign country as if it were a state of the United States … for purposes of applying the UCCJEA.” See A.R.S. § 25-1005(A).

Arizona Is the Home State for Relocations Lasting More than Six Consecutive Months with No Intention to Return

Father argues that Tunisia is Child’s home state for jurisdictional purposes and that Child was only temporarily absent from Tunisia.

Mother responded, stating that before moving to Arizona Child had not lived anywhere consecutively for more than 3 months.

Mother argues that Arizona is Child’s home state because Child “lived with her in Arizona for more than six consecutive months immediately prior to the commencement of the instant child custody proceeding.”

Arizona Uniform Child Custody Jurisdiction and Enforcement Act Statutes

The Arizona Superior Court agreed with Mother, denying Father’s motion to dismiss. In the opinion of the Arizona Superior Court, Child’s home state before moving to Arizona was Tunisia, but Arizona became Child’s home state when Child and Mother resided in Arizona for over six months with no intention to return to Tunisia.

The Arizona Superior Court emphasized Mother’s and Child’s time away from Tunisia was not a temporary absence because Mother and Child never intended to return to Tunisia.

The Arizona Superior Court proclaimed that any claim of a temporary absence was repudiated by Mother’s decision to travel to the United States on a repatriation flight, Mother’s failure to return to Tunisia after Tunisia reopened its borders, and Mother’s communications with Father that Mother was “deeply unhappy” with the relationship and had an “obvious reluctance” to return to Tunisia.

Father argued that Arizona cannot be Child’s home state because six months had not passed between Mother’s communication with Father that Mother intended to permanently stay in Arizona, and the filing of Mother’s petition.

The Arizona Superior Court disagreed. Father then appealed to the Arizona Court of Appeals for special action relief.

Special Action Relief to Define a Temporary Absence

“Special action jurisdiction is discretionary, but appropriate when no ‘equally plain, speedy, and adequate remedy by appeal’ exists.” The Arizona Court of Appeals can also exercise special action jurisdiction when “statutes or procedural rules require immediate interpretation, and a petition presents a purely legal issue of first impression that is of statewide importance.” See Gutierrez v. Fox.

The Arizona Court of Appeals in this case exercised special action jurisdiction to determine the appropriate legal standard for determining whether an absence is a temporary absence for home state jurisdictional purposes.

The Arizona Court of Appeals will “review issues of law, including statutory interpretation and a court’s jurisdictional authority, de novo.” “To the extent a court’s jurisdictional determination rests on disputed facts, however, the Arizona Court of Appeals will accept [the] findings [of the Arizona Superior Court] if reasonable evidence and inferences support them.” See Holly C. v. Tohono O’odham Nation.

A Temporary Absence Is Determined by the Totality of the Circumstances

Relocation and Uniform Child Custody Jurisdiction and Enforcement Act in Arizona

The Arizona Court of Appeals began their examination of the case by acknowledging Mother lived with Child in Arizona for slightly longer than six months because Mother moved to Arizona on April 13, 2020 and Mother filed her petition on November 3, 2020.

However, Father argues that Child was only temporarily absent from Tunisia during that time. Therefore, Father argues, Arizona lacks jurisdiction to make an initial determination of custody regarding Child.

The Arizona Court of Appeals referenced Bata v. Konan in declaring “jurisdiction cannot be established in a state where the time spent in that state is found to be a period of temporary absence from another state.”

However, the Arizona Court of Appeals recognized that the UCCJEA does not specifically define the term “temporary absence.”

The Arizona Court of Appeals also stated that Arizona courts have not officially adopted a standard for assessing if an absence qualifies as a temporary absence for purposes of determining home state jurisdiction.

The Arizona Court of Appeals stated that without any controlling authority on the matter, the Arizona Court of Appeals would look to legal standards applied by other jurisdictions interpreting the term “temporary absence.”

The Arizona Court of Appeals acknowledged that “although the UCCJEA ‘was meant to be interpreted uniformly across jurisdictions,’ states have adopted three different tests to evaluate whether an absence is temporary for purposes of determining a child’s home state.”

The first test examined was the duration test. Under the duration test, the focus is “strictly on the length of the child’s absence.” “Short absences are treated as temporary, and longer ones are not.” See Matter of Marriage of Schwartz & Battini.

The Arizona Court of Appeals declined to adopt this test because, although it was straight forward and easy to apply, “it fails to recognize that some short absences ‘may simply be the start of a permanent relocation.’”

The second test considered by the Arizona Court of Appeals was the intent test. The intent test “requires courts to consider the parents’ purpose for an absence to determine whether it should be deemed temporary.”

The Arizona Court of Appeals stated that this test was difficult to apply because determining a party’s true intent can sometimes be “problematic” and a parent’s intent “may have differed from the outset or changed over time.”

The third test, which the Arizona Court of Appeals ultimately adopted, is the totality of the circumstances test. The totality of the circumstances approach “is the standard ‘most commonly used by other UCCJEA states.” “Under the totality of the circumstances test, [Arizona Court’s must] consider ‘all the surrounding circumstances of a purported temporary absence, including the intent of the parties and the duration of the absence, to assess whether the absence should be treated as a temporary departure from a putative home state.”

The Arizona Court of Appeals stated that the totality of the circumstances test “provides ‘greater flexibility’ for a court to examine all the relevant facts, including how, when, and why ‘the child came to and remained in the state.’”

Having adopted the totality of the circumstances approach, the Arizona Court of Appeals was now properly equipped to deal with the case between Mother and Father.

Child’s Absence Was Not a Temporary Absence

Arizona Child Custody Jurisdiction

The Arizona Court of Appeals then examined four pieces of testimony Father had made at the evidentiary hearing held by the Arizona Superior Court.

First, Father testified that he did not approve of Mother leaving Italy with Child on a repatriation flight.

Second, Father testified that he and Mother agreed that Mother and Child would return to Tunisia as soon as international travel was reestablished.

Third, Father testified that Mother’s communications with him after arriving in Arizona “were consistent with her returning to Tunisia.”

Lastly, Father testified that he did not realize Mother intended to permanently stay in Arizona with Child until he was served with a copy of Mother’s petition.

Father cites three communications with Mother in support of his contention that the parties’ intended Child’s presence in Arizona to be temporary.

In the first communication from Mother to Father regarding Mother’s return to Tunisia, Mother stated, “if and when they … lift the restrictions about quarantine in Tunisia, we’ll gladly come back and hopefully in the meantime we can find some way to communicate about our relationship and try to repair [it].”

In the second communication Mother emailed Father about a banking matter. Mother stated, “it’s pointless for me to make the transfer to my personal account if I can’t wire it to my account in America so I’ll just wait until I get back to Tunisia.”

In the third communication Mother stated to Father she had sustained an injury and was unable to travel. Mother stated, “I know you’re in a hurry for us to return but I can barely walk.”

However, “[i]n response to questioning, Father admitted that Mother had ‘expressed a desire to stay in Arizona’ and conveyed considerable reluctance about returning to Tunisia.”

Father was also copied on a letter Mother had emailed to her Arizona therapist on August 5, 2020. Mother’s letter to her therapist stated, in part:

“The child and I did leave Italy for Phoenix on April 13[, 2020] however both Father and I were agreed and understood that we would be in America until the Coronavirus pandemic passed and it became safe and possible to travel again.” “Father expressed sadness at our departure but agreed and understood that we needed to return to the US to have some distance from him due to the abuse the child and I were suffering within our relationship.” “During our time in Phoenix, I have requested repeatedly that Father work constructively with me to attempt to repair our relationship or determine a go-forward plan. I have proposed various living situations, asked him to discuss my fears and issues related to our relationship and the poor living conditions in Tunisia. He has refused each time.” “Despite the four months of separation between us, I remain afraid of returning to Tunisia and Father’s home. I have a duty to protect the child from the certain consequences we will suffer at Father’s hand for protecting the child and myself.”

Father admitted reading the letter, but Father believed Mother could “still come back.”

Mother on the other hand testified she told Father in March 2020, while still in Italy, that she could not continue the relationship.

Mother also testified she told Father again that she would not continue their relationship before getting on her flight to America in April 2020. Mother explained that because she was afraid of Father, she did not explicitly tell Father that she was ending their relationship with no plan to return, instead telling Father that their relationship was unhealthy and was harming Child.

Mother further testified she repeatedly told Father after arriving in Arizona, “she would not ‘consider’ returning to Tunisia unless [Father] made behavioral changes and could assure both her and the child’s safety.”

Mother denied accusations she mislead Father or hid her intent to stay in Arizona with Child from Father, but acknowledged she would frequently “placate” Father to avoid confrontation.

Personal Knowledge That a Relocation Was Intended to Be Permanent Is Not Necessary in Arizona

Father argued “the six-month period for determining a child’s ‘home state’ does not begin to run until the parent in the original state ‘had reason to recognize the permanency of the out-of-state absence.’”

Arizona Child Relocation Laws

Father claims he “had no reason to believe to believe Child’s absence from Tunisia was permanent until he was served with Mother’s petition.” “Father argues the six-month period did not begin to run until January 2021, two months after Mother commenced [the child] custody proceeding.” Father cites Cook v. Arimitsu in support of his argument.

The Arizona Court of Appeals in rejecting Father’s argument stated that Father’s “contention is belied by Father’s (1) admission that after arriving in the State Mother ‘expressed a desire’ to remain in Arizona and conveyed considerable reluctance when pressed about returning to Tunisia, and (2) [Father’s] emails imploring Mother to return to Tunisia, promising no ‘reproach awaited’ her.”

The Arizona Court of Appeals stated, “in determining whether an absence is a ‘temporary absence,’ we do not believe the significance of intent can or should be restricted to the intent existing at the time of leaving.” See In Re Marriage of Pereault.

“If it were so restricted, then an absence that began with the intent to return would remain a ‘temporary absence’ even long after a decision had been reached for the child to permanently relocate.”

The Arizona Court of Appeals stated, “although Father argues ‘an expression of desire to remain in Arizona is very different from a declaration of intent to remain in Arizona,’ Mother testified, unequivocally that she told Father, both before leaving Italy and after arriving in Arizona, that she believed it was unsafe for her and the child to return to Tunisia.”

Father’s argument asserts the six-month period for home state jurisdiction should not begin until he realized he could not persuade Mother to return to Tunisia “and abandoned hope of reconciliation and reunification.”

Child Custody Lawyers Scottsdale Arizona

The Arizona Court of Appeals stated that is not the legal standard pronounced by Cook, the case cited by Father. “Rather, the question [under Cook] is when Father had reason to recognize the child’s relocation was permanent, not when he resigned himself to that reality.”

In other words, the Arizona Court of Appeals said Father misunderstands the legal principles laid out in Cook.

Furthermore, the beginning of the six-month period for home state jurisdiction does not rest on Father’s knowledge of the permanency of Child’s move to Arizona with Mother.

The Arizona court of Appeals stated the Arizona Superior Court was “in the best position to determine the credibility of witnesses, resolve conflicts in evidence, and weigh the evidence accordingly.”

The Arizona Court of Appeals determined the Arizona Superior Court did not err in its conclusion that “Father had reason to believe Mother was permanently relocating to Arizona with [Child] when they left Italy.”

The Arizona Court of Appeals stated under the totality of the circumstances, “reasonable evidence supports the [Arizona Superior Court’s] finding that [Child’s] absence from Tunisia was not temporary for purposes of the UCCJEA.” The Arizona Court of Appeals stated, “given the length of [Child’s] continuous presence in [Arizona] before Mother filed her petition, the [Arizona Superior Court] properly found that Arizona is [Child’s] home state for purposes of subject matter jurisdiction under the UCCJEA.”

Conclusion

A court must have subject matter jurisdiction to exercise legal authority over a given issue.

For an Arizona court to make a child custody determination, Arizona must generally be the home state of the child. But, there are exceptions to the general rule.

The home state of a child is the state in which a child has lived with a parent for at least six consecutive months, including any period during which that person is temporarily absent from that state.

The totality of the circumstances determines whether an absence is a temporary absence. The totality of the circumstances test requires courts to consider all the surrounding circumstances of a purported temporary absence, including the intent of the parties and the duration of the absence.

Arizona Divorce Attorneys

If you have questions about child custody laws in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have over 100 years of combined experience successfully representing clients in divorce and family law cases.

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