Interstate custody issues are jurisdictional issues, meaning which court of law has jurisdiction over the child to decide a child custody proceeding. Arizona adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in 2000, and the Act is codified at A.R.S. §§ 25-1001-1067. The Act defines a child custody proceeding as a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights and protection from domestic violence, in which legal custody, physical custody or visitation with respect to a child is an issue or in which that issue may appear.
The UCCJEA covers both initial child custody determinations and modifications of custody orders. An initial custody determination means the first child custody determination concerning a particular child – meaning no other child custody orders from any other court exist as to that particular child. Modification means a child custody determination that changes, replaces, supersedes or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.
In order for a court in Arizona to enter the first custody order over a child, that court must have initial jurisdiction over that child as defined by the statute below.
A.R.S. Section 25-1031. Initial child custody jurisdiction
A. Except as otherwise provided in section 25-1034, a court of this state has jurisdiction to make an initial child custody determination only if any of the following is true:
1. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
2. A court of another state does not have jurisdiction under paragraph 1 or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 25-1037 or 25-1038 and both of the following are true:
(a) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships.
3. All courts having jurisdiction under paragraph 1 or 2 have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 25-1037 or 25-1038.
4. A court of any other state would not have jurisdiction under the criteria specified in paragraph 1, 2 or 3.
B. Subsection A of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
C. Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.
The main thing the Arizona court is looking for before making an initial custody order is that Arizona is the “home state” of the child. “Home state” is defined as:
(a) The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding, including any period during which that person is temporarily absent from that state.
(b) If a child is less than six months of age, the state in which the child lived from birth with a parent or person acting as a parent, including any period during which that person is temporarily absent from that state.
As to modifications of custody orders, Arizona will not modify a child custody decision that was made by a court of another state unless Arizona had jurisdiction to make the initial custody determination as set forth above and either of the following are true:
(1) The court in the other state determines that it no longer has exclusive, continuing jurisdiction under section 25-1032 (see below) or that a court of this state would be a more convenient forum under section 25-1037 (see below).
(2) The Arizona court or a court in 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.
A.R.S. Section 25-1032. Exclusive continuing jurisdiction
A. Except as otherwise provided in section 25-1034, a court of this state that has made a child custody determination consistent with section 25-1031 or 25-1033 has exclusive, continuing jurisdiction over the determination until either of the following is true:
1. A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships.
2. A court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state.
B. A court of this state that has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 25-1031.
A.R.S. Section 25-1037. Inconvenient forum
A. A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised on motion of a party, the court's own motion or request of another court.
B. Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors including:
1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
2. The length of time the child has resided outside this state.
3. The distance between the court in this state and the court in the state that would assume jurisdiction.
4. The relative financial circumstances of the parties.
5. Any agreement of the parties as to which state should assume jurisdiction.
6. The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
8. The familiarity of the court of each state with the facts and issues in the pending litigation.
C. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings on condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
D. A court of this state may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.
The UCCJEA can also apply to custody orders made by foreign countries and the Arizona courts may also enforce an order for the return of a child to that foreign country, if they wrongfully brought to Arizona, under the Hague convention on the civil aspects of international child abduction.
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