As hard as we may try, we cannot predict the future. We base decisions on what we know to be true today, and what we expect to be true tomorrow, next month, and even years ahead. When child custody orders are issued, we necessarily take a snapshot of the current circumstances and combine that knowledge with a projection of what is likely to occur in the future. Because life’s only constant is change, the courts will consider modifying child custody orders when a continuing change in circumstances necessitates new orders. At the core of every custody order — whether it be the original order or a modification — is the court’s jurisdiction.
Jurisdiction is the court’s power and authority to decide the child custody case. A court cannot render an enforceable decision if it lacks jurisdiction. An Arizona court with proper jurisdiction generally will not modify another state’s child custody order unless that state has either lost jurisdiction, or has declined to exercise jurisdiction.
Along with every state but Massachusetts and Vermont, Arizona adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to provide consistency in custody matters within the state and between the states. The UCCJEA specifically addresses jurisdiction.
There are four ways to establish our court’s jurisdiction over a child custody matter under the UCCJEA. The Superior Court can exercise jurisdiction when one of the following four circumstances exist:
There are also limitations on Arizona’s jurisdiction under the UCCJEA. Assuming the exercise of jurisdiction by another state is authorized under its version of the UCCJEA, our court will refuse jurisdiction when the custody case is already pending in another state.
Also, when the petitioning Arizona parent has violated another state’s custody order, our court will decline jurisdiction unless the child’s best interests demand that our state accept jurisdiction despite that parent’s violation of the out-of-state court’s order.
Our family court also has discretion to refuse jurisdiction when the party to the initial court action took the child from another state wrongfully, or when Arizona is an inconvenient forum for the custody action.
To consider modification of a custody order, the family court judge must first establish its jurisdiction over the parties. In some circumstances, the court may exercise emergency jurisdiction to protect a child, such as the abandonment of a child in the state. Most cases do not require emergency jurisdictional measures, however. More commonly, when the divorce is final and a custody order is in effect the court still has “continuing jurisdiction” over custody. That is, the court’s jurisdiction continues throughout the child’s minority or until emancipated, unless some change in circumstances ends that jurisdiction.
There are at least two circumstances that will terminate the court’s continuing custody jurisdiction under A.R.S. § 25-1032:
Parenting plans, custody modifications, and jurisdictional issues can be complex matters, made more so when there are heightened tensions between the parents. And as we’ve learned over the years, child custody disputes are typically the most contentious ones. The best course of action is to discuss these concerns with your lawyer, and avoid violating any out-of-state court order.