Learn Why a Hearing is Required Before a Court Declines Child Custody Jurisdiction in Arizona
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to continue to exercise child custody jurisdiction in Arizona was answered by the Arizona Court of Appeals in the unpublished decision in the case of Greene vs. Sawicki.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:
Call us at (480)305-8300 to schedule your personalized consultation with one of our experienced Phoenix Arizona or Scottsdale Arizona divorce attorneys today.
More Articles About Child Custody in Arizona
- Access to a Child’s Medical Records in Arizona
- Adoption Attorneys in Arizona
- Required Affidavit in a Child Custody Case in Arizona
- Are Mothers Favored Custody Battles in Arizona
- Arizona Child Custody Attorneys
- Arizona Child Custody Statutes
- Arizona Uniform Child Custody Jurisdiction and Enforcement Act Statutes
- Changing a Child’s Last Name in Arizona
- Changing Child Custody in Arizona
- Child Custody and Child Support in Arizona
- Child Custody In Arizona
- Child Custody Laws in Arizona
- Child Custody Rights in Arizona
- Co-Parenting After Divorce in Arizona
- Custody of a Child to Grandparent in Arizona
- Delegation of Custody Decisions in Arizona
- Divorce and Grandparents Visitation in Arizona
- Effective Co-Parenting in Arizona
- Emergency Child Custody in Arizona
- Emergency Child Custody Orders in Arizona
- Enforce Parenting Time or Custody in Arizona
- Enforce Visitation Non-Custodial Parent in Arizona
- Grandparent’s Rights in Arizona
- How is Child Custody Determined in Arizona
- How to Change a Child’s Last Name in Arizona
- How to Enforce Parenting Time in Arizona
- How to Get Sole Custody in Arizona
- How to Modify Child Custody in Arizona
- How to Modify Visitation in Arizona
- Joint Custody and School Decisions in Arizona
- Joint Custody vs Sole Custody Arizona
- Joint Legal Custody or Joint Decision Making in Arizona
- Modifying Visitation With a Child in Arizona
- Moving Children Many Times in Arizona
- Order of Protection and Child Custody in Arizona
- Parent Information Program Class in Arizona
- Parent Move Out of State With A Child From Arizona
- Parental Alienation in Arizona
- Prepare for Child Custody Evaluation in Arizona
- Presumption of Equal Parenting Time in Arizona
- Restrictions in Arizona on Taking Children to Another Country
- Sole Legal Custody or Sole Decision Making in Arizona
- Sole or Joint Custody in Arizona
- Temporary Child Custody in Arizona
- Uniform Child Custody Jurisdiction and Enforcement Act in Arizona
- What Are the Child Custody Factors in Arizona
- What Determines Child Custody in Arizona
- What is a Child Custody Evaluation in Arizona
- What is a Parenting Coordinator in an Arizona Child Custody Case
- What Is Domestic Violence in Arizona
- What Types of Child Custody Are There in Arizona
- What Visitation or Parenting Time Schedules do Judges Order in Arizona
- Who Has Custody of Children When a Divorce is Filed in Arizona
- Who Is the Best Child Custody Lawyer in Arizona
- Withholding Child From Custodial Parent in Arizona
Chris Hildebrand wrote this article about a court declining child custody jurisdiction to ensure everyone has access to information about child custody law in Arizona. Chris is a child custody and divorce attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a child custody case should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through in a child custody case.