Table of Contents
The Short Answer
In Arizona, the Due Process Clause of the Constitution requires an Arizona judge to hold a hearing to allow the parties to present evidence as to whether an Arizona judge should decline to exercise continuing and exclusive child custody jurisdiction before declining to do on the basis that Arizona is an inconvenient forum for continued child custody litigation and concluding another state is a more convenient forum for the child custody case.
Facts of the Case on Child Custody Jurisdiction
The question of whether a hearing is required before an Arizona court can decline to continue to exercise child custody jurisdiction in Arizona was answered by the Arizona Court of Appeals in the unpublished decision in the case of Greene vs. Sawicki.
The following is the decision in that child custody appeal.
This is an appeal from an Arizona court’s order declining to exercise its exclusive jurisdiction in a family-law case based on the conclusion that Illinois provided a more appropriate forum.
Under A.R.S. § 25-1037, which sets forth the test for inconvenient forum under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the court was required to consider domestic violence.
But though the court was presented with disputed allegations of domestic violence, the court took no evidence to resolve the dispute.
We therefore reverse.
Ms. Greene (“Mother”) and Mr. Sawicki II (“Father”) are the parents of two minor children. In 2007, Mother filed a petition in Arizona (where both parents then lived) to determine custody, parenting time, and child support.
In 2008, the court approved the parties’ parenting plan, which purported to establish joint custody and substantially equal parenting time.
In the years that followed, Mother and Father engaged in frequent litigation in the Arizona case.
They also moved several times, sometimes sharing a residence.
Mother first moved from Arizona with the children in late 2010, ultimately settling in Illinois.
Father then moved to Illinois, and for a period the parties lived there together. In 2011, Mother and Father stipulated to joint custody and a parenting-time schedule.
The agreement provided that neither parent would move the children more than fifty miles from their residence absent court order or written consent of the other parent.
But in early 2012, Mother unilaterally relocated to Arizona with the children, and Father sought the Arizona court’s intervention.
In late 2012, the court found that both parties had perpetrated domestic violence on each other, reaffirmed joint legal custody, ordered Mother to return the children to Illinois, and set forth a parenting-time schedule.
Several months later, the court modified its ruling to specify that Mother’s obligation to return the children to Illinois was contingent on Father remaining current on child support payments for at least four months.
In early 2014, the children were still in Arizona when Mother filed a petition to permit relocation.
The court denied the relocation petition and reaffirmed joint legal decision-making in late 2015.
In early 2016, Mother and the children returned to Illinois and moved in with Father. A few months later, Mother returned to Arizona without the children.
Father thereafter asked the court to stop his child-support obligation, and Mother petitioned to enforce arrearages and medical insurance coverage. By late 2016, those issues were resolved.
But while they were pending, several events occurred.
First, in August 2016, the court granted Mother’s request that her address is protected from disclosure based on threats and harassment by Father; relatedly, in October 2016, the court granted Mother’s ex parte petition for an order of protection against Father.
The court also ordered that Mother would have a week of parenting time in Arizona in late August, but Father did not send the children, citing Mother’s noncompliance with the court’s order that she provide an itinerary for the children’s return travel.
Status Conference Regarding the Court’s Jurisdiction Under the UCCJEA
In late October, the court set a status conference for November 2. Mother appeared in person at the November 2 status conference, and Father and the Illinois judge appeared telephonically.
Neither Mother nor Father was sworn, and the court took no evidence.
Mother acknowledged that she had taken the children to Illinois in late January, that she returned to Arizona without them in April, and that there was no claim for relief currently pending in the Arizona court.
A Hearing is Required Before an Arizona Court Declines Child Custody Jurisdiction
We have jurisdiction under A.R.S. § 12-2101(A)(3), which authorizes an appeal from “any order affecting a substantial right made in any action when the order in effect determines the action and prevents a judgment from which an appeal might be taken.”
The Arizona court’s decision to decline jurisdiction effectively closed the Arizona case, depriving Mother of the right to continue to have controversies resolved in Arizona and eliminating the possibility of the Arizona court issuing appealable judgments. See A.R.S. § 25-1037(C) (providing that when an Arizona court determines that another state’s court is a more appropriate forum, the Arizona proceedings must be stayed, so long as a custody proceeding is promptly commenced in the other state).
We note, however, that litigants in Mother’s position may obtain more meaningful relief by way of special action, because such
may permit reversal of an improper jurisdictional decision before out-of-state proceedings go forward. See Ariz. R.P. Spec. Act. 1(a) (providing that special-action jurisdiction is appropriate where there is no equally plain, speedy, and adequate remedy by appeal).
Declining Child Custody Jurisdiction Because of an Inconvenient Forum Requires a Hearing
Section 25-1037(A) provides that “[a] court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” See also Melgar v. Campo, 215 Ariz. 605, 607 (App. 2007) (holding that decision to relinquish exclusive, continuing jurisdiction generally belongs to the court holding such). Under § 25-1037(B), in making the determination the court “shall allow the parties to submit information and shall consider all relevant factors including” eight enumerated factors:
If you have questions about a hearing to decline custody jurisdiction in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have over 100 years of combined experience successfully representing clients in child custody and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona child custody or family law case around today.
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About the Author: Chris Hildebrand has over 26 years of Arizona family law experience and received awards from US News and World Report, Phoenix Magazine, Arizona Foothills Magazine and others. Visit https://www.hildebrandlaw.com.