Modification of Child Custody Orders Involving a Child Abduction in Arizona
Generally, an Arizona divorce court determines custody issues if the children are before the court. What if the children are only before the court because they were abducted by a noncustodial parent? The Arizona Court of Appeals discussed this issue in the case Stuard v. Bean, 554 P.2d 1293 (1976).
Facts and Background
Mr. Ziglar and Mrs. Ziglar married in Alabama and had two daughters. Mr. Ziglar’s mother, Mrs. Stuard, also lived in Alabama. When Mr. Ziglar and his wife had marital problems, Mr. Ziglar asked his mother (Mrs. Stuard) to take custody of the girls. She agreed and the girls went to live with her in February, 1975.
Several months later, the Alabama circuit court awarded legal custody of the girls to Mrs. Stuard. In the meantime, Mrs. Ziglar moved to Arizona and obtained a divorce there in Cochise County. The divorce order did not rule on custody. It said that custody must be determined under Alabama law since the children were not in Arizona.
Soon after the divorce, Mrs. Ziglar married Mr. Lindo. She then went to court in Alabama to try to regain custody of the two girls. The Alabama court ordered that the girls stay with Mrs. Stuard while it investigated the Lindo and Stuard households. However, the court allowed Mrs. Ziglar to have the children for a weekend.
That weekend, Mrs. Ziglar and her new husband took the children to Arizona and did not return them to Alabama. Mrs. Ziglar petitioned the Arizona court in Pinal County for a temporary child custody order. She also asked it to amend the decree issued in Cochise County.
Mr. Ziglar and his mother came to Arizona with the Alabama orders and returned the girls to Alabama. However, four hooded persons abducted the two girls and returned them to Arizona. Mr. Ziglar and his mother returned to Arizona and petitioned for a writ of habeas corpus, which was issued. It directed that the two girls be placed in the custody of a justice of the peace, pending a hearing.
Mr. Ziglar and Mrs. Stuard asked the court to order that the Alabama court had initial child custody jurisdiction and that the Cochise County court did not. At that hearing, the Pinal County court declined to rule on whether the Cochise County court had child custody jurisdiction. It said the court in Cochise County should make that ruling. It ordered the children to remain with juvenile authorities in Pinal County until the Cochise County court ruled on that issue.
Mr. Ziglar and Mrs. Stuard brought this special action. It challenges the refusal of the Arizona court to decide the jurisdictional issue.
Procedure When Children Abducted
The Court of Appeals first considered whether a Petition for a Writ of Habeas Corpus was the proper procedural device here. It determined that it was the appropriate procedure when children have been taken from the person having legal custody.
It next ruled that the court failed to act appropriately when it declined to rule on the jurisdictional issue. The Court of Appeals looked at the issue itself. It determined that the Arizona courts did not have jurisdiction to modify the Alabama child custody orders. As to whether the Arizona courts have jurisdiction to decide permanent custody of the children, the court reviews Arizona Revised Statute Section 25-331.
Under that statute, it was improper for the real parties in interest to attempt to invoke the jurisdiction of the Arizona courts after having obtained custody of the children by abducting them from Alabama and returning them to this state.
Arizona case law, embodied in the case of Application of Stone states: “… except for the most compelling reasons the Arizona courts will not exercise jurisdiction to affect a custody decree, rendered by a sister state, having jurisdiction over the subject matter and parties thereto, where the party petitioning our courts for relief has wrongfully retained such custody in Arizona for the purpose of frustrating a sister state’s lawful decree.”
The Court concluded that Mrs. Ziglar acted improperly in asking the Arizona courts to rule on custody of children she abducted. Arizona courts will not exercise jurisdiction in this type of case. To do so would encourage kidnapping and contempt for court orders of a another state.
The Court of Appeals found that Arizona did not have jurisdiction to determine permanent custody of the two children. The lower court should have made this ruling. The Court ordered the lower court to restore custody of the two children to Mrs. Stuard.