As Part 1 of this article described, the family court in Tucson had a legal dilemma on its hands. On the one hand, as the trial court acknowledged, Mexico was the home state of this child and the highest court in Mexico had determined that the Baja court had correctly taken jurisdiction over the case. On the other hand, the reason that Mexican law gave jurisdiction to the Baja court was because Mauricio had claimed abandonment-a claim which does not exist in Arizona. If the exact same case had come before the trial court but the two parents had been living in two different U.S. States instead of two different Mexican states, the UCCJEA would have given jurisdiction to the state where the mother and child had been living-exactly what Elsa had been arguing for all along.
The Pima County trial court ultimately decided that because the reasoning behind the Mexican Supreme Court's grant of jurisdiction to the Baja court would not have occurred in a U.S. court, the Arizona court could not enforce the Baja court's order. After some additional pleadings, the trial court also ordered Mauricio to pay Elsa over seventy thousand dollars in legal fees. He appealed. While he waited for the appeals court to consider his case, Mauricio, perhaps growing impatient after 4 years of litigation, took Sophia back to Mexico and refused to return her to Elsa. He was found in contempt by the Arizona trial court for violating its orders.
When Mauricio's case came before the Arizona Court of Appeals, there was a chance that the appeals court would refuse to rule on it at all as punishment for his disobedience of the lower court's order not to remove the child from Pima County, but the appeals court determined that as both parents were equally guilty of that behavior, it would be unfair to sanction Mauricio. Turning to the issue raised in the case, the Court of Appeals concluded that the trial court had been mistaken. According to the Court of Appeals, the UCCJEA didn't require that the foreign order be made under a process that squared with the UCCJEA, just that the foreign order came from what would be the child's "home state" if the UCCJEA applied. The essence of the UCCJEA, the court wrote, was to encourage respect for out-of-state orders and to discourage parents from taking children across borders by giving priority to the child's home state/country. Therefore, the Mexican order should have been upheld and enforced by the Tucson trial court.
However, even though the appeals court determined that Mauricio had been correct all along, it did not award him his attorneys' fees because of his decision to violate the lower court's order and remove the child from the jurisdiction. It's understandable why he might have been frustrated after 4 years of constant court battles, but it seems likely that Mauricio's decision to take his daughter back to Mexico against the court's order cost him the unambiguous legal victory he would otherwise have won. It's not unusual for parents to experience frustration with the legal system, and while this case is certainly an extreme example, it is a good reminder of what Arizona Child Custody lawyers often tell their clients: there's a right way and a wrong way to fight a decision you disagree with... and reaching an agreement about the children is better still.
Read the case here: Margain v. Ruiz-Bours, 2 CA-CV 2015-0067, (Ariz. App., 2016)