Registration of Foreign Custody Order Not Required Before Arizona Modification

Categories: Child Custody, Child Support

Arizona court had jurisdiction to modify Illinois child custody order on Nebraska father’s petition. Statute governing registration of foreign child support orders does not control registration of foreign child custody orders. With petition to modify out-of-state child support order, Uniform Interstate Family Support Act (UIFSA) requires prior registration. But Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) allows the court to modify foreign legal decision-making and parenting time orders without prior registration if court had initial custody determination jurisdiction and satisfied other UCCJEA requirements.

Dana N. Prouty and Adam T. Kafka, consolidated with Prouty v. Bradley Hughes (2018).

photo of gavel in family courtroom

Registration of foreign child custody order was not required by UCCJEA before modified by Arizona court

Mother and Child Move to Arizona Following Illinois Custody Determination

The daughter of Dana Prouty and Adam Kafka was born in 2008. In Illinois, when the child was two, her parents entered into a custody agreement with the mother awarded sole legal decision-making with primary physical custody and the father awarded “unspecified parenting time.” Prouty – “romantically involved” with Bradley Hughes – relocated to Arizona with her daughter soon after.

Father Filed Petition to Modify Custody in Arizona

Father, a resident of Nebraska, sought to modify custody orders in Arizona where the mother and child resided. In December 2012, he filed the Illinois custody order, his petition to modify custody, and a motion for temporary orders without notice seeking custody. Subsequent to an ARFLP Rule 69 Agreement between Prouty, Hughes, and Kafka, the superior court granted temporary custody to Hughes, parenting time once a month to father, and supervised parenting time to mother.

Then in May 2013, the father petitioned to modify temporary orders. At the hearing, the family law judge had him register the Illinois custody order under UCCJEA’s ARS § 25-1055. After Kafka registered the out-of-state custody order in August, the superior court sent notice of registration to both parties. Also in August, and without giving notice, Prouty moved to Illinois with her children.

Arizona Court Grants Temporary Custody Orders

In November, the superior court granted Father temporary joint legal decision-making and sole physical custody, issuing a custody warrant so he could retrieve his daughter from the mother in Illinois.

When Kafka tried to enforce the custody warrant in Illinois, Prouty obtained an emergency restraining order against him. She claimed Arizona lacked jurisdiction to modify the Illinois custody order because:

  • Mother and daughter lived in Arizona only “sporadically and temporarily”;
  • Mother’s primary residence was Illinois; and
  • The Illinois custody order was not registered properly in Arizona because the mother was not personally served.

Emergency Motion to Enforce Arizona Custody Warrant

That December, Kafka filed an emergency motion in Arizona. At the hearing, the superior court made findings and conclusions of law. It affirmed the custody warrant and all its prior orders. Among the court’s findings, it found mother and daughter were residents of Arizona in October 2012; and it found mother admitted Arizona was their “home state.” Shortly after these admissions, Prouty and children were back in Illinois. Furthermore, the Illinois court found Arizona jurisdiction proper and the custody warrant immediately enforceable.

Prouty argued she was not properly notified of the Illinois custody order’s registration – the superior court had mailed its August notice to the address on record, not to her new address in Illinois. Holding service was proper, “[m]other’s failure to update her address with the court did not invalidate its registration or validity.”

In early 2014, the mother motioned to dismiss the Arizona proceedings for lack of jurisdiction. The superior court denied the motion and affirmed its December 2013 findings and orders.

Father Brought Contempt of Court Proceedings Against Mother

In May, Kafka brought contempt proceedings when Prouty did not comply with the custody warrant. He supplemented his motion with documents showing the mother’s attempts at serving him with an order of protection in Illinois with the child as the protected person. On its own motion, the superior court conducted a UCCJEA jurisdictional conference with the Illinois court. The Illinois judge vacated its protective order having found Prouty was using Illinois courts to avoid the Arizona orders she did not agree with.

The January 2016 trial lasted almost two days. The father’s petition for modified legal decision-making and parenting time was granted. Mother filed a timely appeal.

When to Register Foreign Child Support and Custody Orders

This case illustrates the difference between UIFSA and UCCJEA registration. Child support does not equal child custody. Affirming the trial court, the Arizona Court of Appeals rejected Prouty’s argument that the trial court did not have subject matter jurisdiction to modify an unregistered Illinois child custody order under ARS § 25-1055 of the UCCJEA. The mother cited Glover v. Glover, 231 Ariz. 1 (Ariz. Ct. App. 2012), a child support case.

Exclusive Jurisdiction Over Child Support Orders

The jurisdictional matter in Glover involved a Massachusetts child support order that was not registered in Arizona as required by the Uniform Interstate Family Support Act (UIFSA). Glover is distinguishable because it did not involve failed registration of a foreign child custody order.

In Glover, the modified foreign child support order was held void for lack of jurisdiction. The Massachusetts support order was never registered in Arizona. Foreign child support orders must be registered to confer subject matter jurisdiction on the Arizona court. UIFSA’s ARS §25-1310 and § 25-1309. The issuing state has exclusive jurisdiction over its child support orders unless and until the order is registered in Arizona. Glover does not apply to foreign custody orders.

Registration of Foreign Custody Orders Under UCCJEA

Under the UCCJEA, a foreign child custody order is not required to be registered for the Arizona court to modify it, but may be. The appeals court held the UCCJEA’s jurisdictional requirement for modification of a foreign custody order is that, first, Arizona has authority to make an initial custody determination and, second, that either of the following is true:

1. The court of the other state determines it no longer has exclusive, continuing jurisdiction under ARS § 25-1032 or that a court of this state would be a more convenient forum under ARS § 25-1037.

2. A court of this state or a court of the other state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the other state. [Excerpt of ARS §25-1033.]

Given registration of the Illinois custody order was not required, father’s failure to timely register it did not deprive Arizona of modification jurisdiction. Affirming the trial court, the superior court properly exercised jurisdiction and its modified custody order is valid. For purposes of subject matter jurisdiction, the UIFSA does require registration of a foreign child support order before modifying it in Arizona, but the UCCJEA does not if other jurisdictional requirements are met.

Prouty v. Hughes, 1 CA-CV 16-0402 FC (Ariz. Ct. App. Dec. 11, 2018).

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

To learn more about Rule 69 Agreements in family law or registration of foreign child support and child custody orders, talk to an attorney with experience with these sensitive matters.