Mexico Court Had Child Custody Jurisdiction for Arizona Enforcement

Categories: Child Custody

UCCJEA child custody jurisdiction of foreign court (Mexico) in Arizona case summary.

Mauricio Fernandez Margain V. Elsa Lourdes Ruiz-Bours

In a Mexico divorce action, the child’s father was awarded definitive legal custody. During proceedings, mother absconded with the child to Tucson, Arizona. Father petitioned to enforce the foreign court’s order in the Superior Court in Pima County where mother and child resided. The Arizona trial court rejected Mexico’s jurisdiction over the child having determined the legal circumstances were not in substantial conformity with the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA. The Arizona Court of Appeals held the Mexico court’s child custody order was enforceable and that Mexico was, factually, the child’s home state for jurisdictional purposes under the UCCJEA. The trial court’s ruling was reversed with the case remanded for further proceedings consistent with the appellate court’s opinion.

Basis for Mexico Jurisdiction of Child Custody

In September 2007, the parties were married in Hermosillo, Sonora, Mexico. Shortly thereafter they moved to Coronado, California, where their daughter was born in July 2008. Mother and child returned to Hermosillo, remaining there from October 11, 2010, to July 5, 2012.

In August of 2011, the father filed for divorce in Tijuana, Baja California, Mexico. The Second Family Court of Tijuana ordered the mother not to remove the child from Hermosillo without court approval.

In July 2012, the mother absconded to Tucson, Arizona, with the child in violation of the Mexico family court’s restraining order. That September, father was granted the divorce on grounds of abandonment and awarded “definitive legal custody” of his daughter. (Note: Jurisdictional disputes were not limited to the UCCJEA in this case. The mother also challenged the Tijuana family court’s jurisdiction, unsuccessfully.)

Enforcement of Foreign Child Custody Order in Arizona Family Court

In October 2014, father filed a Petition for Expedited Enforcement of Child Custody Determination in the Superior Court for Pima County seeking immediate physical custody of the child. Both parents were enjoined from removing the child from Arizona without leave of court and prohibited from removing the child from Pima County without mutual agreement.

After a three-day trial on whether Mexico had properly exercised jurisdiction over the child, in February 2015 the trial court ruled against the father: the “[Tijuana] Family Court did not make its custody determination in substantial conformity with the jurisdictional standards of the UCCJEA.” Father filed a timely appeal. The mother was awarded $73,462.28 in attorney’s fees and costs, to which father also appealed.

In August 2015, the mother filed a motion to dismiss father’s appeal on contempt of court grounds following father’s failure to return the child after a scheduled visit. Instead, he absconded to Mexico with the child in violation of the family court’s order.

Despite Contempt of Court, Father’s Appeal Goes Forward

The first issue was whether father’s appeal should be dismissed altogether as a penalty for contempt. The Court of Appeals has discretion to dismiss an appeal under certain circumstances in the exercise of its contempt powers. When a party is in “flagrant and contumacious disregard” for the trial court’s order, then the appeals court may deny that party the right to litigate. Citing Stewart v. Stewart, 91 Ariz. 356, 372 P2d 697 (Ariz. 1962).

The case was not dismissed. In an equitable analysis of unclean hands, both parties exhibited the same outrageous conduct in violating court orders. First, the mother had absconded to Tucson with the child, violating the Mexico family court’s order. Second, the father had absconded to Mexico with the child, violating the Arizona court’s order. Under these circumstances, the father’s appeal was allowed to go forward, but he would pay a price.

Mexico Was Child’s Home State at Time of Divorce Filing

On the main issue of the Mexico court’s child custody jurisdiction, the appeals court reversed and remanded the case for further proceedings consistent with its holding. The controlling law is Arizona’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See ARS § 25-1005(B), § 25-1053(A), and § 25-1002(7)(a).

The appellate court held that, based upon the facts, Mexico had home state jurisdiction under the UCCJEA and authority to determine child custody. The home state has priority over all other jurisdictional possibilities. In ARS § 25-1002(7)(a), the child’s home state is where “a child lived with a parent … for at least six consecutive months immediately before the commencement of child custody proceedings, including any period during which that person is temporarily absent from that state.” This is a factual inquiry, one the trial court did not conduct. The parties had stipulated that mother and child lived in Hermosillo for over six months prior to the Tijuana divorce filing.

The trial court erred in ruling the Tijuana family court did not exercise jurisdiction “in substantial conformity” with the UCCJEA. Having only considered the “legal circumstances,” the lower court wholly ignored the factual circumstances. The trial court should have determined whether the facts showed that Mexico was the child’s home state in substantial conformity with the UCCJEA. Reversed and remanded.

Reversed Award of Attorney’s Fees and Costs

In conjunction with its reversal of the trial court’s ruling, the attorney’s fee award to the mother was also reversed. However, because of father’s contempt of court (unclean hands), he was denied an award of attorney’s fees and costs of appeal despite his being the prevailing party.

Margain v. Ruiz-Bours, 2 CA-CV 2015-0067 (April 22, 2016)

For precise language, read the court’s original opinion. Legal citations omitted.

To learn more about jurisdictional issues in family law cases, read Arizona Child Custody and the UCCJEA.