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Jurisdiction is Necessary to Petition for Visitation

Posted on : March 20, 2017, By:  Christopher Hildebrand
Jurisdiction is Necessary to Petition for Visitation

Jurisdiction is Necessary to Petition for Visitation

The Arizona Court of Appeals-Division One rendered an unpublished decision in the case of Bourgo v. Bourgo a grandparent visitation petition that had previously been denied in an Arizona family court. Since the case is unpublished, you may not be allowed to cite this case as authority in an Arizona court.

Judge Jon W. Thompson delivered the decision for the appeals court, in which Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
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After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
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Sam Franchimone
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22:09 12 Sep 13

Background

The grandparents are mother’s parents and, therefore, are the maternal grandparents of mother’s minor child, who is the subject of the appeal. The child was born in January of 2001, out of wedlock, to mother and father. Mother and father married in May of 2002. They are also the biological parents of two other children, which are not subjects of this appeal.

Petitioning for Visitation Requires Jurisdiction.

Petitioning for Visitation Requires Jurisdiction.

In June of 2003 mother petitioned for dissolution of marriage with minor children and the Arizona family court rendered a decree of dissolution in November 2004. Mother was awarded parenting time “every weekday from 9:00 a.m. until 4:00 p.m. and every other weekend from Saturday at 3:00 p.m. through Sunday at 3:00 p.m.”

 

In January 2006, the parents agreed to a parenting plan following which the Arizona family court granted father sole legal custody of the three minor children (the youngest being the subject of this appeal). At this same hearing, the father petitioned the Arizona family court to relocate, with the minor children, to Portland, Oregon. His request was granted, and he subsequently moved to Oregon with the children.

A month after the January 2006 ruling, the mother filed an emergency motion for sole legal custody of the three minor children and had them returned to her. The Arizona family court denied her motion.

Mother was allowed, per court order, parenting time in Oregon upon 48 hours’ notice to the father. The historical record reveals that the minor children have lived with father in Oregon since 2006.

In September 2008 mother returns to the Arizona family court requesting the Court modify custody and award her sole legal custody of the parties’ minor children.

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Father asked that the Court affirm prior custody orders granting him sole legal custody of the parties’ minor children. The Court considered the Conciliation Services’ Findings of Fact and Conclusions of Law report. Within this report, it was noted that mother had spent no time with the minor children since their move to Oregon in 2006.

She claimed that she could not afford the air travel costs; however, it was noted that within the same time (two years) mother had moved frequently from Arizona to California and Hawaii. Mother was unable to convince the court that traveling to Oregon was not affordable.

Also of significant concern to the Court was mother’s unstable mental health. The Court found that evidence supported findings that mother had experienced hallucinations and needed hospitalization to address her mental health issues. This was of great concern to the Court and weighed heavily in its decision.

Mother did acknowledge that she had not received any mental health treatment since 2004. The Court considered all of the findings within the Findings of Fact and Conclusions of Law report submitted by Conciliation Services regarding the child custody and visitation issues, and also weighed the Court’s observations of mother’s incapacity to focus on answering questions without deviating to unrelated matters.

Jurisdiction is Necessary to Petition for Visitation.

Jurisdiction is Necessary to Petition for Visitation.

The Court denied mother’s petition and ordered her to undergo a psychological assessment to “rule out any pathology that could pose a risk to the safety and well-being of the children.” After many years and several more circumstances that were irrelevant to the appeal, in March 2016 mother and maternal grandparents filed a petition in the Arizona family court requesting grandparent visitation with the youngest minor child.

The court considered the petition and ruled that it no longer had jurisdiction over the matter and denied the grandparents’ visitation request. The grandparents and mother filed an appeal. The Court concluded, “that appeal was premature – because the family court’s order was not final under Arizona Rule of Civil Procedure 58(a) as the judge did not sign it.”

In June 2016 the family court issued a nunc pro tunc order to include the judge’s signature.

Review and Analysis

In February 2017 the Arizona Court of Appeals reviewed and considered whether the Arizona family court had “subject matter jurisdiction under Arizona’s version of the Uniform Child Custody and Enforcement Act (UCCJEA)”. The Arizona family court ruled that it no longer had jurisdiction in regards to the minor child who has lived in Oregon since 2006.

The appeals court agreed that Arizona did not have jurisdiction in the matter and affirmed the family court’s ruling. It was noted that “Oregon, not Arizona, had jurisdiction because Arizona was not the minor child’s home state at the time of, or six months before, the grandparents’ petition.” The small child “no longer has a significant connection with this state….substantial evidence is no longer available in this state concerning the child’s care, protection, training and personal relationships”. The Arizona Court of Appeals Presiding Judge and two other Judges affirmed the family court’s ruling.

The takeaway from this case is that the Arizona Superior Court judge continued to have jurisdiction under the UCCJEA as to the mother because it previously gained exclusive jurisdiction over the child custody issues and had not chosen to decline that jurisdiction. The grandparents’ new petition for visitation, however, occurred after the child had established a new “home state” in Oregon over which the Arizona judge concluded it did not have UCCJEA jurisdiction and, therefore, properly dismissed the grandparents’ petition for visitation.

If you have a question about child custody laws in Arizona, please call to speak to one of our experienced Scottsdale and Phoenix Arizona family law attorneys at (480)305-8300.



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