Gutierrez v. Hon. fox/kivlighn
242 Ariz. 259
Ariz. Ct. App.2017Background
- Child M.K. born in Arizona on July 21, 2016; parents unmarried; father's name listed on state-issued birth certificate.
- Mother moved with M.K. from Arizona to Wisconsin on Sept 29, 2016; Father remained in Arizona.
- Father filed an Arizona paternity/parenting petition and temporary orders on Nov 28, 2016 (child ~4 months old); Mother filed in Wisconsin.
- Arizona and Wisconsin courts agreed Arizona would decide jurisdiction under the UCCJEA; Arizona court found it had exclusive home-state jurisdiction.
- After a February 10, 2017 hearing, the superior court issued temporary orders: joint legal decision-making, parenting time in Arizona for Father, and found Father’s paternity sufficiently established.
Issues
| Issue | Plaintiff's Argument (Gutierrez) | Defendant's Argument (Kivlighn) | Held |
|---|---|---|---|
| Home‑state jurisdiction under UCCJEA for infant under 6 months | No home state exists if child hasn’t lived exclusively in one state; Arizona lacked jurisdiction | A.R.S. §25‑1031(A)(1) and §25‑1002(7)(b) make Arizona home state if child lived in AZ from birth and a parent remains in AZ within six months before filing | Arizona was the child’s home state; court correctly exercised jurisdiction under §25‑1031(A)(1) |
| Whether A.R.S. §25‑403 findings are required for temporary orders under §25‑404 | §25‑403(B)’s requirement for specific on‑record findings extends to contested temporary custody orders | §25‑404 is the specific statute governing temporary orders and does not mandate §25‑403 findings; Fam. Law Rule 82 makes findings unnecessary for motions | §25‑403 findings are not mandatory for §25‑404 temporary orders; court did not err by omitting detailed findings |
| Effect of voluntary acknowledgment of paternity | Father had not established paternity before Mother moved; Mother could relocate without Father’s consent | Voluntary acknowledgment and listing on birth certificate establish paternity with force of a judgment under §25‑812(D) | A signed voluntary acknowledgment (reflected on the birth certificate) establishes paternity and vested parental rights in Father before the move |
| Requirement of consent or court order to remove child from AZ; authority to order return/parenting in AZ | Mother could move because no prior court order on custody existed | Given Father’s acknowledged paternity and statutory policy favoring both parents’ access, Mother needed Father’s consent or court order; court could order parenting time to occur in AZ | Mother required Father’s consent or court order to permanently remove child; superior court did not abuse discretion in ordering parenting time primarily in Arizona |
Key Cases Cited
- Villares v. Pineda, 217 Ariz. 623 (App. 2008) (temporary family‑law orders are not appealable; special action is proper)
- Welch–Doden v. Roberts, 202 Ariz. 201 (App. 2002) (interpreting UCCJEA home‑state timing; §25‑1031(A)(1) expands home‑state concept)
- Mangan v. Mangan, 227 Ariz. 346 (App. 2011) (de novo review of UCCJEA jurisdictional questions)
- Andrew R. v. ADES, 223 Ariz. 453 (App. 2010) (voluntary acknowledgement of paternity is presumed valid and binding)
- State v. Wood, 198 Ariz. 275 (App. 2000) (removal of a child without other parent’s consent may constitute custodial interference)