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Gutierrez v. Fox

Court of Appeals of Arizona, First Division

April 13, 2017

THE HONORABLE DEWAIN D. FOX, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, ROBERT KIVLIGHN, II, Real Party in Interest.

         Petition for Special Action from the Superior Court in Maricopa County No. FC2016-009529 The Honorable Dewain D. Fox, Judge

          Horne Slaton, PLLC, Scottsdale By Sandra Slaton, Kristin M. Roebuck Counsel for Petitioner

          Cantor Law Group, PLLC, Phoenix By Bryan Blehm

          The Murray Law Offices, Scottsdale By Stanley D. Murray Co-Counsel for Real Party in Interest

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.


          McMURDIE, Judge:

         ¶1 Michele Gutierrez ("Mother") seeks special action relief, challenging the superior court's temporary orders awarding joint legal decision-making authority to both parents, and parenting time with Robert Kivlighn II ("Father") to occur in Arizona. Mother argues the temporary orders are invalid because (1) Arizona is not the minor child's home state, (2) the superior court did not make statutory findings pursuant to Arizona Revised Statutes ("A.R.S.") section 25-403, and (3) as Father had not established paternity by the time she moved, she did not have to obtain Father's consent to move with the child to Wisconsin.[1]

         ¶2 We previously issued an order accepting jurisdiction, denying relief, and stating a written decision would follow. This is that decision. We hold that (1) under A.R.S. § 25-1002(7)(b) when a child of six months of age or younger has lived in Arizona "from birth with a parent, " and the proceeding is commenced by a parent still living in Arizona within six months of the child leaving Arizona, Arizona remains the home state of the child; (2) statutory findings under A.R.S. § 25-403 are not mandatory when determining temporary orders under A.R.S § 25-404; and (3) a voluntary acknowledgement of paternity has the same effect as a judgment, thereby requiring Mother to obtain Father's consent or a court order to permanently move the child out of Arizona.


         ¶3 M.K. was born outside of marriage in Arizona on July 21, 2016. M.K.'s birth was registered with the Arizona Department of Health Services ("Department") on July 31, 2016, and the Department issued a "certificate of live birth" on December 5, 2016. The certificate lists Kivlighn as the father. Although Mother and Father have never married, they and M.K. lived in Arizona together until September 29, 2016, when Mother left Arizona with M.K. after a disagreement with Father. Mother arrived in Wisconsin on October 2, 2016.

         ¶4 Father initially believed Mother and M.K. had left Arizona to visit Mother's family in Wisconsin and would return to Arizona. However, Father received a text message from Mother on November 23, 2016, informing him that she had decided to permanently relocate to Wisconsin with M.K.[2] Father traveled to Wisconsin to try to convince Mother to return to Arizona, but was unsuccessful.

         ¶5 Immediately after he returned from Wisconsin, on November 28, 2016, Father petitioned to establish his paternity, legal decision-making, parenting time and child support ("the petition"), and moved for temporary orders. M.K. was four months and nine days old when Father filed the petition.

         ¶6 On December 2, 2016, Mother filed a petition to establish paternity, legal decision-making (custody) and parenting time in Wisconsin, and verified under oath that Father was M.K.'s biological father. The Arizona and Wisconsin courts conferred and agreed the Arizona court would decide which state had jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). After the parties briefed the jurisdictional issue in December 2016, the superior court issued an order in which it determined Arizona had "exclusive home state jurisdiction to make the initial child custody order, " and that Arizona was "not an inconvenient forum" pursuant to A.R.S. § 25-1037(B) ("the jurisdictional order").

         ¶7 On February 10, 2017, the superior court conducted an evidentiary hearing on Father's motion for temporary orders regarding legal decision-making, parenting time, and child support. Father testified he cared for M.K., held and nurtured him as much as he could, utilizing the parenting skills he had learned as the oldest of seven siblings. Father sought to establish an equal parenting plan, as he wanted to actively participate in M.K.'s up-bringing, feed him from a bottle, change his diapers, and teach him as he had with his six younger siblings.

         ¶8 During the hearing, Father denied Mother's allegation that he had a substance abuse problem, although he admitted that he previously legally used alcohol and marijuana with Mother in Colorado. Father provided the court with drug test results, showing negative results for alcohol and a variety of drugs and other substances. Father further denied he had any criminal history, and stated that he had never been cited for driving under the influence. Father testified he had not experienced any employment problems or been terminated from a job because of drug use. Father denied suffering from suicidal tendencies or mental health problems. Father also denied all of Mother's allegations of physical abuse, although he admitted to having "called her names" and being aggressive and angry at times. Father's sister testified and opined Mother restricted Father's access to M.K. before she left for Wisconsin.

         ¶9 Mother testified Father had a substance abuse problem because he drank daily and smoked marijuana. Mother asserted Father was rarely involved in caring for M.K. Mother further testified she has extensive family support in Wisconsin, where she grew up, and asserted that neither Father nor his family had helped with M.K. in any significant way. She denied having restricted Father's access to M.K., noting she had provided Father with photos, told Father he could "FaceTime" with M.K., and "never told him he could not see his child." Mother admitted, however, she would not allow Father to be with M.K. for an extended amount of time, and confirmed she did not consider Father a primary caregiver.

         ¶10 At the conclusion of the temporary orders hearing on February 10, 2017, the superior court entered an interim order requiring Father to submit to a hair follicle test.[3] The court declined to require supervised parenting time. The court granted Father daily parenting time of two three-hour increments until February 15, at which point Mother could return to Wisconsin with M.K.

         ¶11 On February 15, 2017, the superior court filed temporary orders, which included a section titled "Best Interest Findings: A.R.S. § 25-403." In its order, the court found Father's paternity "sufficiently established, " awarded Father parenting time to take place in Arizona, and awarded Father and Mother joint legal decision-making authority. Mother then filed this special action seeking review of the superior court's temporary orders.


         ¶12 Special action jurisdiction is discretionary, but appropriate when no "equally plain, speedy, and adequate remedy by appeal" exists. Ariz. R.P. Spec. Act. 1(a). Because temporary orders under A.R.S. § 25-404 are "merely preparatory to a later proceeding" that might affect the judgment or its enforcement, they are not appealable; leaving a party with no adequate remedy by appeal. Villares v. Pineda, 217 Ariz. 623, 624-25, ¶ 10-11 (App. 2008); see Ariz. R.P. Spec. Act. 1(a). But cf. A.R.S. § 25-1064 (an appeal may be taken from a final order in a proceeding enforcing the UCCJEA). We therefore have discretion to accept special action jurisdiction over temporary orders. Villares, 217 Ariz. at 625, ¶ 11; see DePasquale v. Super. Ct. In and For County of Maricopa, 181 Ariz. 333, 336-37 (App. 1995) (the proper challenge to a temporary order is by special action).

         ¶13 We also have discretion to accept special action jurisdiction "when statutes or procedural rules require immediate interpretation, " and a petition "presents a purely legal issue of first impression that is of statewide importance." Escalanti v. Super. Ct. In and For County of Maricopa, 165 Ariz. 385, 386 (App. 1990); State ex rel. Thomas v. Duncan, 216 Ariz. 260, 262, ¶ 5 (App. 2007); see Ariz. R.P. Spec. Act. 8(a).

         ¶14 The petition for special action in this case raises an issue of first impression regarding the application of jurisdiction of A.R.S. § 25-1031(A)(1) for a child under six months of age as defined in A.R.S. § 25-1002(7)(b). Also, there is no controlling authority whether the superior court must make statutory findings of fact pursuant to A.R.S. § 25-403 from a § 25-404 temporary order hearing in which parenting time and decision-making authority are contested. Finally, whether establishment of paternity by a voluntary acknowledgement pursuant to A.R.S. § 25-812(D) has the same effect as a judgment, is an issue which requires our immediate interpretation.

         ¶15 Thus, in the exercise of our discretion, we accept special action jurisdiction pursuant to A.R.S. § 12-120.21(A)(4) and Arizona Rule of Procedure for Special Action 1(a).


         A. Arizona has "Home State" Jurisdiction of ...

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