Duwyenie v. Moran (2/11/2009)

February 17, 2009

Arizona Court of Appeals Division Two Holds that Arizona Superior Court Has Jurisdiction Over Child Custody Dispute Despite that Child Has Been Removed From State by Non-Custodial Parent and is the Subject of a Pending Custody Proceeding in an Out-of-State Tribal Court.

Father and Mother had a child out of wedlock, living in Globe, Arizona.  Father was an enrolled member of the Rosebud Sioux Tribe in South Dakota; Mother was an enrolled member of the San Carlos Apache Tribe in Arizona.  Following the parents’ separation, Father removed the child without permission to South Dakota and initiated a custody proceeding in the Rosebud Sioux Tribal Court.  San Carlos Apache Tribe filed a petition for an intertribal judicial conference with the Rosebud Sioux, proposing that both tribes abstain from jurisdiction so that the custody dispute could proceed in Gila County Superior Court in Arizona.  The Rosebud Sioux Tribal Court initially dismissed the proceeding before it, but later reinstated the case.  In violation of a Rosebud Sioux Tribal Court order, Mother removed the child back to Arizona and initiated a custody proceeding in Gila County Superior Court.  The Superior Court accepted jurisdiction and entered a stipulated order determining paternity, child custody, access, and child support.   Under the stipulated order, Father’s visitation rights were contingent on his posting a $20,000 bond.  Father appealed.

The Court of Appeals affirmed the Superior Court judgment, finding that Arizona court had jurisdiction.  Under Arizona’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), A.R.S. §§ 25-1001 et seq., Arizona had jurisdiction over the custody dispute because the child had lived in Arizona before the child’s unauthorized removal by Father, who did not have legal custody.  To allow Father’s removal of the child to defeat jurisdiction in Arizona would defeat a key purpose of UCCJEA to deter child abductions.  Because Arizona was the child’s home state, the Rosebud Sioux Tribal Court did not have proper jurisdiction over the custody dispute, and thus the first-in-time filing and pendency of the matter in that tribal court did not defeat jurisdiction by the Arizona Superior Court. 

The Court of Appeals rejected as waived Father’s claim that the Superior Court abused its discretion by requiring Father to post a bond as a condition to exercising his visitation rights.  Because Father had stipulated to the entry of the order and did not contest that provision to the trial court, his appeal of that issue was waived.  The appellate court awarded Mother her reasonable attorneys’ fees and costs on appeal.

Judge Vásquez authored the opinion; Judges Eckerstrom and Brammer concurred.