Arizona Court of Appeals

Gutierrez v. Fox


Gutierrez v. Fox is a published opinion where the Arizona Court of Appeals denied a special action challenge to the family court’s temporary orders and held that (1) Arizona was the home state for purposes of establishing jurisdiction; (2) the family court is not required to make detailed findings, under A.R.S. § 25-403 for temporary orders; and (3) a parent cannot relocate the child to another state without consent or court order once paternity has been established.


Approximately three months after the parties’ child was born, Mother took the child to another state. Initially, Father believed Mother was visiting family temporarily and would return with the child. Almost two months later, Mother informed Father that she intended to stay permanently and keep the parties’ child with her.

Father filed a petition to establish paternity, legal decision-making, parenting time, and child support and moved for temporary orders. Four days later, Mother filed a petition to establish paternity, legal decision-making and parenting time in Wisconsin where she relocated.

The Arizona and Wisconsin courts conferred and determined Arizona had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”).

The Arizona family court held an evidentiary hearing on Father’s motion for temporary orders where he denied Mother’s allegations that he abused alcohol and marijuana. Mother also alleged that Father suffered from mental health problems and physically abused Mother.

The family court ordered Father to submit to a hair follicle test which did not detect any illegal substances. Consequently, the judge entered temporary orders for joint legal decision-making and awarded Father unsupervised parenting time.

Home State Jurisdiction

On special action, Mother argued that the family court erroneously asserted jurisdiction under the UCCJEA. Mother claimed that because the child was less than six months old, there was no “home state” under the UCCJEA.

The UCCJEA is a statutory framework adopted in most states to promote uniformity in child custody and enforcement proceedings.

Under Arizona law, the family court has jurisdiction to make an initial child custody determination if Arizona “was the home state of the child within six months before the commencement of the proceeding and the child is absent from [Arizona] but a parent or person acting as a parent continues to live in [Arizona]. The Court of Appeals rejected Mother’s argument that there was no home state since the child did not live in Arizona exclusively.

*Note: Even when jurisdiction is proper, the family court may decline jurisdiction if Arizona would be an inconvenient forum based on the unique facts of the case.

Mother also argued that paternity was not established before she relocated to Wisconsin, therefore she was not required to obtain Father’s consent to take the child with her.

The Court of Appeals found that Father voluntarily acknowledged paternity, pursuant to A.R.S. § 25-812. Per that statute, a “voluntary acknowledgment of paternity … is a determination of paternity and has the same force and effect as a superior court judgment.”

Though Father was listed on the birth certificate, Mother argued that because Father did not sign the certificate, it was insufficient to establish paternity under A.R.S. § 25-814. However, as the Court of Appeals noted, this statute independently addresses presumptions of paternity that can be raised in a contested paternity action and a signature is not required to establish paternity by acknowledgment under A.R.S. § 25-812.

Contrary to Mother’s position, a parent commits custodial interference when he/she denies the other parent’s access to their child. A parent’s removal of a child from Arizona to another state, without the other parent’s consent or a court order, constitutes denial of access.

Lastly, Mother argued that the family court erred when it ordered Father’s parenting time to occur in Arizona. Mother reasoned that compliance effectively required her to relocate back to Arizona.

It is rarely possible for a family court to create a long distance parenting plan that burdens neither parent. The family court here properly weighed the advantages and disadvantages to both parents when it determined that parenting time should occur in Arizona.

Full decision