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When Courts Fight, Nobody Wins (Part 1)

Arizona family law attorneys know that custody disputes are often contentious, complex, and costly. The issues are polarizing and emotionally charged, so perhaps it's no surprise that even well-meaning parents sometimes fight. Occasionally, the legal system itself joins in the tug-of-war, as in the recently decided case of Margain v. Ruiz-Bours (Ariz. App., 2016).

The decision in the case was handed down this month from Division 2 of the Arizona Court of Appeals, but it was a long, winding road for the parties to get there. The story begins in 2007 in Mexico, where Mauricio Margain and Elsa Ruiz-Bours were married and had a daughter a year later. Mauricio filed for divorce in Baja California in 2011 on the grounds that Elsa had abandoned the marriage. Elsa objected because she and the child both lived in Sonora, and so that state (and not Baja California) had jurisdiction over the case. Mother would normally have been correct under Mexican law, but if a spouse is claiming to have been abandoned, the state in which the abandoned spouse is living has jurisdiction. Elsa's challenge to the Baja court's jurisdiction was therefore rejected by a higher court in Mexico. Elsa appealed that ruling to a higher court in 2012 and lost, then appealed again in 2013 to an even higher court and received the same answer. Finally, in 2014, Elsa took her jurisdiction argument to the Supreme Court of Mexico, which again ruled that the original decision had been correct and the parties must move forward in Baja.

While her appeals were pending in Mexico, Elsa took matters into her own hands and left Mexico with the parties' daughter. She went across the border to Tucson, Arizona and refused to allow Mauricio contact with her. Meanwhile, back in Mexico, the case before the Baja family court proceeded in Elsa's absence and sole custody (now called sole "legal decision making authority" in Arizona) of Sophia was awarded to her father. Armed with the Baja court's order, Mauricio came to Tucson and asked the court there to order Elsa to hand over Sophia to him. The Tucson court did not rule immediately and in the meantime arranged for both parents to have time with the child, who was ordered not to leave Pima County.

The Tucson court heard from both parents and experts on Mexican law about a difficult legal question. Under Arizona law, and throughout the United States, questions of which state (or foreign country) has the right to make a decision about the custody of a child is governed by the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). The core of the UCCJEA is that if a child has lived in a place for at least 6 months, that place becomes the "home state" of the child, meaning the courts of that place are the only courts which may validly rule on custody. The UCCJEA defines a "home state" as the state (or foreign country) where the child had lived for the previous 6 months. However, the UCCJEA also says that a foreign order can only be enforced if that order was made under "factual circumstances in substantial conformity" with the UCCJEA. The attempt to untangle the meaning of that phrase would ultimately lead to the Arizona Court of Appeals.

[Tune in next week for Part 2 of "When Courts Fight, Nobody Wins]

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