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Who Has Child Custody Jurisdiction

Categories: Family Law, Article

Arizona Child Custody Battle

Who Has Child Custody Jurisidction- Mexico, Arizona, or California? 

The decision in Margain vs. Ruiz-Bours [1] provides some insight into the workings of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") as adopted by Arizona in Title 25, Chapter 8, Articles 1 through 3. 

Facts of the Child Custody Case 

The facts of the case are interesting. In 2007, the parties were married in Hermosillo, Mexico and moved to California where their child - Sophia was born in 2008. Although the purpose of the trip was in dispute, the parties agreed that Sophia and Ruiz-Bours moved back to Hermosillo and continued to reside in Hermosillo until (at least) July 5, 2012. 

On August 23, 2011, Margain filed for dissolution of the marriage in Baja California, Mexico and Ruiz-Bours was served. At that time, the Mexican Court ordered Ruiz-Bours to not remove Sophia from Hermosillo without the approval of the Court. Ruiz-Bours challenged the jurisdiction of the Court (Sonora as opposed to Baja California) but after extensive litigation, including an appeal to the Supreme Court of Mexico, jurisdiction was affirmed in the Baja California Court in June 2014. 

In July 2012 and before the litigation regarding jurisdiction was concluded, Ruiz-Bours absconded with Sophia to Tucson, Arizona in violation of the order prohibiting her from removing Sophia from Hermosillo without the approval of the Court.  

In September 2014, the Baja California Court issued its final decision awarding "definitive legal custody" of Sophia to Margain. In October 2014, Ruiz-Bours filed a proceeding in Pima County seeking "immediate physical custody" of Sophia, and a hearing was scheduled in November. 

At the November hearing, the Court found that it had jurisdiction and that Margain had complied with all due process requirement. Margain was awarded parenting time and orders were entered prohibiting either party from removing Sophia from Pima County or the State of Arizona. In December, the Court scheduled a hearing to determine whether Mexico had exercised jurisdiction in substantial conformity with the UCCJEA. 

At the February 2015 hearing, both parties presented expert testimony regarding the exercise of jurisdiction under Mexican law. On March 2, 2015, the trial court concluded that under Mexican law, jurisdiction is determined by the location of the marital residence, or in the case of abandonment, the residence of the abandoned spouse, whereas the UCCJEA requires consideration of the location of Sophia. Therefore, the trial court decided that the Mexican Court did not make its custody determination in substantial conformity with the jurisdictional requirements of the UCCJEA. Following the filing of a motion for new trial on the issue of fees, the Court awarded Ruiz-Bours the sum of $73,462.28 for costs and attorney fees.  Margain appealed. 

During summer 2015, Ruiz-Bours filed a contempt proceeding after Margain took Sophia to Mexico (in violation of the Court's November 2014 orders) and failed to return her after a scheduled visit. The Court held Margain in contempt. 

Custody Issues On Appeal 

1. Should the Court consider Margain's Appeal?   The Court of Appeals initially addressed whether it should consider Margain's appeal given his contempt of court for absconding with Sophia. The Court acknowledged its inherent contempt power and its authority to dismiss the appeal on account of Margain's conduct, and discussed the 'doctrine of unclean hands'. The Court decided not to impose the sanction of dismissal in view of the very same misconduct which had previously been committed by Ruiz-Bours in bringing Sophia to Arizona.

2. Enforcement under the UCCJEA. The UCCJEA requires that child custody   determinations made in foreign countries "must be recognized and enforced" if the determination is made "under factual circumstances in substantial conformity with the jurisdictional standards" of the UCCJEA [2].  Foreign countries are to be treated as if they are "state[s] of the United States" for resolving questions of jurisdiction [3].

The Court of Appeals focused on the "factual circumstances" meeting the jurisdictional standards of the UCCJEA and surmised that the trial court considered only the legal circumstances, and not the factual circumstances. The true test, according to the Court of Appeals, is whether the factual requirements for exercising jurisdiction existed in the case before the Mexican Court – put differently, whether Mexico was Sophia's HomeState [4] in substantial conformity with the UCCJEA.  

Arizona courts are required to enforce a custody determination where: 

  1. A foreign country has made a child custody determination; and
  2. The court in the foreign county has jurisdiction by virtue of being the Home State of the child under factual circumstances in substantial conformity with the UCCJEA.
  3. Attorney Fees. Since the Appeals Court reversed the ruling of the trial court, the award of costs and attorney fees to Ruiz-Bours was also reversed. They declined to award Margain costs or fees on appeal on account of his contemptible failure to obey the trial court's order regarding removal of Sophia.  

Conclusion

In the final analysis, the Court of Appeals simply applied the definition of Home State in concluding that Mexico had jurisdiction to make an initial child custody determination. The determination must be made whether the factual requirements for exercising jurisdiction exist in the foreign court, and if so, the courts in Arizona must enforce the determination made in that court.

As to attorney fees and costs, conduct of a litigant may have an impact. Certainly, contemptible conduct may preclude an award of fees and costs. 


About the author: Mervyn Braude is a family law attorney at the Phoenix law firm of Jaburg Wilk. He is a certified family law specialist by the State Bar of Arizona. Mervyn is a 2010 Southwest Super Lawyer


[1] 2 CA-CV 2015-0067 Court of Appeals of Arizona, Division Two, filed April 22, 2016

[2]  Arizona Revised Statutes, § 25-1005(B)

[3] Arizona Revised Statutes, § 25-1005(A)

[4] Defined in Arizona Revised Statutes Statutes, § 25-1031(A)