Ramirez v. Barnet , 241 Ariz. 145 ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
CHRISTOPHER J. RAMIREZ, Petitioner/Appellant,
v.
SUNDAY R. BARNET, Respondent/Appellee.
URHAN KENNETH MERSIMOVSKI and WILLIAM L. HILDEBRANT,
Intervenors.
No. 1 CA-CV 15-0568 FC
FILED 11-22-2016
Appeal from the Superior Court in Maricopa County
No. FC2014-095815
The Honorable Joseph Sciarrotta, Jr., Judge (Retired)
The Honorable Shellie Smith, Judge Pro Tempore
The Honorable Carolyn K. Passamonte, Judge Pro Tempore
REVERSED AND REMANDED WITH INSTRUCTIONS
COUNSEL
Steadman Law Firm PLC, Mesa
By Timothy W. Steadman
Counsel for Petitioner/Appellant
Cavanagh Law Firm, Phoenix
By Helen R. Davis, Timea R. Hargesheimer
Counsel for Intervenors
RAMIREZ v. BARNET
Opinion of the Court
OPINION
Presiding Judge Patricia K. Norris delivered the opinion of the Court, in
which Chief Judge Michael J. Brown and Judge Patricia A. Orozco joined.
N O R R I S, Judge:
¶1 Petitioner/Appellant Christopher J. Ramirez appeals from
the Arizona family court’s order dismissing his verified petition to establish
paternity of a child born to Respondent/Appellee Sunday R. Barnet for lack
of jurisdiction. We reject the argument raised by Intervenors on appeal,
Urhan Kenneth Mersimovski and William L. Hildebrant (“Intervenors”),
that the family court properly dismissed Ramirez’s paternity proceeding
because, under the Parental Kidnapping Prevention Act (“PKPA”), 28
U.S.C.A. § 1738A (West 2000), it was required to give full faith and credit to
an order entered by a New York court granting their petition to adopt the
child. Further, as Ramirez argues on appeal, the family court had
jurisdiction to act on his paternity petition under the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified in
Arizona Revised Statutes (“A.R.S.”) sections 25-1001 to -1067 (Supp. 2015).1
Thus, we reverse and remand for further proceedings as instructed below.
See supra ¶ 34.
FACTS AND PROCEDURAL BACKGROUND
¶2 Barnet became pregnant in February 2014, and the child was
born on October 27, 2014. Ramirez believed he was the child’s father. A few
days before the child’s birth, Barnet left Ramirez and stopped
communicating with him. Ramirez found out Barnet had given birth to the
child at a local hospital, and went to the hospital a day after the child’s birth,
but was not allowed to see the child. On October 30, 2014, Ramirez filed a
verified petition in the family court to establish paternity, legal decision
making, parenting time, and support (the “paternity petition”).
1The Legislature has not materially amended the state statutes
cited in this opinion since Ramirez filed his paternity petition. Thus, we cite
to the current versions of the statutes.
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RAMIREZ v. BARNET
Opinion of the Court
¶3 At the same time Ramirez filed the paternity petition, he also
filed a verified motion for emergency temporary custody orders without
notice (“temporary orders motion”). Ramirez alleged in the temporary
orders motion that Barnet’s oldest daughter was the subject of a pending
dependency/termination of parental rights proceeding filed by the Arizona
Department of Child Safety (“DCS”), and that DCS had informed Barnet
that if she had another child it would take the child into care. Given this,
Ramirez argued that he and his family should be allowed to care for the
child. Accordingly, Ramirez sought both emergency and temporary legal
decision making and physical custody of the child. On November 6, 2014,
the clerk of the court entered an order signed by the family court on
November 4, 2014, granting Ramirez emergency temporary legal decision
making and physical custody of the child and ordering any person having
physical custody of the child to immediately relinquish custody to Ramirez
(“the temporary order”). The court also set a “return hearing” on the
temporary orders motion for November 19, 2014. A private process server
served Barnet with the paternity petition, the temporary orders motion, and
the temporary order on November 15, 2014.
¶4 A day before the return hearing, Barnet moved to dismiss the
paternity petition and the emergency temporary custody order for lack of
jurisdiction. In that motion—which was not accompanied by any
under-oath declaration or affidavit—Barnet alleged that before the child’s
birth, she had contacted an adoption attorney and arranged for Intervenors
to adopt the child. Barnet alleged she had consented to Intervenors’
adoption of the child on October 30, 2014, and Intervenors had obtained
physical custody of the child on that same day.2 Barnet attached to the
motion to dismiss a copy of what she asserted was her consent to
Intervenors’ adoption of the child. Barnet further asserted the administrator
of the Interstate Compact of the Placement of Children (“ICPC”) had
granted Intervenors permission to leave Arizona with the child and return
to their home in New York and that the child was currently living with
Intervenors in New York. See A.R.S. §§ 8-548 to –548.06 (Supp. 2015)
(“Arizona ICPC”).
¶5 Of significance to this appeal, Barnet also asserted Intervenors
had initiated adoption proceedings in New York on October 30, 2014.
Barnet further asserted the New York court had “already begun
2Ata subsequent evidentiary hearing, see infra ¶ 9, Barnet,
through counsel, asserted Intervenors left Arizona with the child on
November 1, 2014.
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RAMIREZ v. BARNET
Opinion of the Court
proceedings regarding the adoption process” and had ordered Ramirez to
appear before it on January 14, 2015, if he wished to contest Intervenors’
adoption of the child. And, relying on the UCCJEA, A.R.S. § 25-1002(7)(b),
she argued New York was the child’s “home state” and New York, not
Arizona, had jurisdiction “to hear this matter.”
¶6 At the November 19, 2014 return hearing, Barnet, through
counsel, disputed that Ramirez was the child’s father. She also asserted—
and Ramirez’s counsel confirmed—that at the beginning of the hearing
Ramirez had been served with “paperwork” regarding the New York
adoption proceeding and had been ordered by a court in New York to
appear at a January 14, 2015 hearing if he wished to contest Intervenors’
petition to adopt the child. Ramirez argued, however, that even though
Intervenors had filed a petition to adopt the child in New York, Arizona,
and not New York, had jurisdiction over the case because the child was in
Arizona when he filed the paternity petition and, thus, Arizona was the
child’s “home state” under the UCCJEA.
¶7 At the conclusion of this hearing, the family court judge
informed the parties she would conduct a conference with Intervenors’
counsel and the New York court “as soon as possible” pursuant to the
UCCJEA. See A.R.S. § 25-1010 (“A court of this state may communicate with
a court in another state.”). For reasons not disclosed by the record, that
conference did not occur. On December 15, 2014, the family court judge
then assigned to the matter entered an order setting an evidentiary hearing
for April 2, 2015, before a different family court judge. In the order setting
the evidentiary hearing, the family court judge explained she was unwilling
to rule on Barnet’s motion to dismiss
without an evidentiary hearing at which
[Barnet] may provide more specific information
regarding the birth of the child, the initiation of
adoption proceedings in New York, the current
status of that proceeding and case information
for those proceedings, including case name,
number, identification of the specific court and
judicial officer handling the case. [Barnet] shall
also be prepared to provide this Court with
proof of the agency utilized to effectuate the
transfer of the child, pursuant to A.R.S. [§] 8-548
et seq., and the proof of identity of the child’s
biological father as required by A.R.S. [§] 8-
548(b)(2).
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RAMIREZ v. BARNET
Opinion of the Court
The family court judge also informed the parties that at the conclusion of
the April 2, 2015 hearing, the family court would decide whether it should
conduct a UCCJEA conference with the New York court before ruling on
Barnet’s motion to dismiss.3
¶8 In February 2015, Ramirez moved to accelerate the
evidentiary hearing scheduled for April 2, 2015. Barnet opposed the motion
to accelerate and requested that the court vacate the April hearing.
Asserting Ramirez had failed to appear in the New York adoption
proceeding and the New York court had entered an order on February 3,
2015, granting Intervenors’ petition to adopt the child, Barnet argued the
New York court’s adoption order was entitled to full faith and credit and,
thus, there was “nothing left to contemplate or decide.” The family court
denied Ramirez’s motion to accelerate the hearing.
¶9 At the April 2015 evidentiary hearing, Ramirez
acknowledged he had not appeared at the January 14, 2015 New York
adoption proceeding to contest Intervenors’ petition to adopt the child. He
also conceded the New York court had entered an order on February 3,
2015, granting Intervenors’ petition to adopt the child. Nevertheless, he
argued the New York adoption order was invalid because Arizona was the
child’s home state when he filed the paternity petition. Ramirez also
testified at the hearing and explained why he believed he was the child’s
father and explained that he and Barnett had planned to raise the child
together.4
¶10 Following the April 2015 hearing, the family court found that
when Ramirez filed his paternity petition, it had home state jurisdiction
under the UCCJEA to make an initial child custody determination. Because
a UCCJEA conference with the New York court had not been held, the
family court informed the parties it would schedule such a conference with
the New York court and, after the conference, would rule on Barnet’s
motion to dismiss. Subsequently, the family court granted Barnet’s motion
to dismiss (the “dismissal order”). In the dismissal order, the family court
explained its staff had contacted the New York court and had been
informed that the “[New York court did] not believe [it had] jurisdiction
any longer over the adoption case as the adoption [had been] completed
3The family court judge also stayed the temporary order until
further order of the court.
4Barnett did not appear at the April 2, 2015 evidentiary
hearing.
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RAMIREZ v. BARNET
Opinion of the Court
and [there were] no set of circumstances where a DNA Test would be
ordered.” Given this, the family court determined it did not have
“jurisdiction or authority to take any action over” the child and no basis to
determine if Ramirez was the child’s father.
¶11 After Ramirez appealed the family court’s dismissal order,
this court granted Intervenors’ motion to intervene in the appeal. Although
Intervenors’ filed an answering brief, Barnet did not.
DISCUSSION
¶12 Ramirez argues the family court should not have dismissed
his paternity petition because it had jurisdiction over his petition under the
UCCJEA. Even though Ramirez, Barnet, and indeed, the family court, relied
solely on the UCCJEA, Intervenors argue we do not need to address
Ramirez’s UCCJEA jurisdictional argument because the dispositive issue
presented in this appeal is whether the New York adoption order is entitled
to full faith and credit under the PKPA. Although we agree with
Intervenors that the PKPA and not the UCCJEA governs the full faith and
credit issue presented in this appeal, we disagree with them that the PKPA
required the family court to give full faith and credit to the New York
adoption order. Further, we agree with Ramirez that the family court had
jurisdiction over his paternity petition under the UCCJEA, and therefore,
should not have dismissed it.5
I. Full Faith and Credit Under the PKPA
¶13 Congress enacted the PKPA to provide uniformity among
states in the enforcement of custody orders. J.D.S., 182 Ariz. at 88, 893 P.2d
at 739 (citing Thompson v. Thompson, 484 U.S. 174, 181, 108 S. Ct. 513, 517, 98
L. Ed. 2d 512, 518 (1988)). “[T]he PKPA does not grant or withhold
jurisdiction, but only specifies which state decrees are entitled to
enforcement.” Id. (citing Anne B. Goldstein, The Tragedy of the Interstate
Child: A Critical Reexamination of the Uniform Child Custody Jurisdiction Act
5Intervenors’ full faith and credit argument and Ramirez’s
UCCJEA jurisdictional argument raise issues of law. Thus, we exercise de
novo review. See Grynberg v. Shaffer, 216 Ariz. 256, 257, ¶ 5, 165 P.3d 234,
235 (App. 2007) (reviewing issue of full faith and credit de novo) (citations
omitted); see also J.D.S. v. Franks, 182 Ariz. 81, 89, 893 P.2d 732, 740 (1995)
(whether court has jurisdiction under the UCCJEA is question of law
reviewed de novo) (citation omitted).
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RAMIREZ v. BARNET
Opinion of the Court
and the Parental Kidnapping Prevention Act, 25 U.C. Davis L. Rev. 845, 925
(1992)). The PKPA principally focuses on when full faith and credit must be
given to a state’s custody determination. The PKPA directs that a state must
enforce, and may not modify, any custody determination made
“consistently” with the PKPA by another state court. 28 U.S.C.A. §
1738A(a). And, the PKPA bars a state from exercising jurisdiction in a
custody proceeding when a custody proceeding is pending in another state
and that state is “exercising jurisdiction consistently” with the PKPA. 28
U.S.C.A. § 1738A(g).6
¶14 Although Ramirez’s paternity action was governed by the
UCCJEA, A.R.S. § 25-1002(4) (defining “child custody proceeding” as
including a paternity proceeding), the UCCJEA does not govern adoption
proceedings. See A.R.S. § 25-1003; N.Y. Dom. Rel. Law § 75-b (McKinney
2002). Thus, as Intervenors argue, the parties and the family court should
have looked to the PKPA to decide whether the New York adoption order
was entitled to full faith and credit. J.D.S., 182 Ariz. at 88, 893 P.2d at 739;
In re Baby Girl F., 932 N.E.2d 428, 436-37 (Ill. App. Ct. 2008) (UCCJEA does
not apply to adoption proceedings; thus, PKPA governed dispute between
birth mother and adoptive parents as to whether Illinois was required to
give full faith and credit to South Carolina Supreme Court decision
affirming order entered in South Carolina granting adoptive parents
temporary custody of child).
¶15 As discussed above, see supra ¶ 13, the PKPA directs when a
state must give full faith and credit to another state’s custody
determination, 28 U.S.C.A. § 1738A(a), and when it must refrain from
exercising jurisdiction in a custody proceeding. 28 U.S.C.A. § 1738A(g). On
appeal, Intervenors focus only on the former and ignore the latter. But, on
the record before us, the New York court was barred from exercising
jurisdiction over the child under 28 U.S.C.A. § 1738A(g), and thus the family
court was not required to give full faith and credit to the New York
adoption order.
¶16 Section 1738A(g) bars a state from exercising jurisdiction
when a party “commence[s]” a custody proceeding in that state if a custody
6The parties also refer to the ICPC, which “is primarily
procedural, providing a system of coordination among the states when a
child born in one state is placed for adoption in another state.” J.D.S., 182
Ariz. at 89, 893 P.2d at 740 (citation omitted). The parties correctly agree,
however, that the ICPC does not provide a basis for deciding the issues
raised in this appeal. Id. at 92-93, 893 P.2d at 743-44.
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RAMIREZ v. BARNET
Opinion of the Court
proceeding is pending in another state (the “first state”), and the court in
the first state is “exercising jurisdiction consistently with the provisions” of
the PKPA. Specifically, 28 U.S.C.A. § 1738A(g) provides:
A court of a State shall not exercise jurisdiction
in any proceeding for a custody or visitation
determination commenced during the
pendency of a proceeding in a court of another
State where such court of that other State is
exercising jurisdiction consistently with the
provisions of this section to make a custody or
visitation determination.
¶17 As discussed above, Ramirez filed his paternity petition on
October 30, 2014. Although the record on appeal contains no evidence that
Intervenors petitioned to adopt the child in New York on or before October
30,7 they assert they “commenced” the adoption proceeding in New York
when Barnet signed the consent for adoption in Arizona on October 30,
2014. We reject that argument.
¶18 The PKPA does not define “commenced” or “pendency.”
Given this definitional silence, courts look to the law of the state where the
action has been brought to determine the commencement and pendency of
a proceeding. See In re B.B.R., 566 A.2d 1032, 1040 n.25 (D.C. 1989) (citing
Russell M. Coombs, Interstate Child Custody: Jurisdiction, Recognition, and
Enforcement, 66 Minn. L. Rev. 711, 773 (1982) (“Courts should construe [28
U.S.C.A. § 1738A(g)] to allow each state’s law to determine when a
proceeding in that state is commenced or begins its pendency.”)); see also
David Carl Minneman, Annotation, Pending Proceeding in Another State as
Grounds for Declining Jurisdiction Under § 6(a) of the Uniform Child Custody
Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28
U.S.C.A. § 1738A(g), 20 A.L.R. 5th 700, §§ 22-26 (1994) (discussing cases
holding that whether an action is commenced for purposes of the PKPA or
7After this appeal was at issue, this court ordered Intervenors
to file with this court certified copies of the docket and all filings made in
the New York adoption proceeding. The New York court denied
Intervenors’ motion for release of these records, and thus, Intervenors were
unable to comply with this court’s order.
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RAMIREZ v. BARNET
Opinion of the Court
the UCCJA8 is determined by reference to the relevant state’s procedural
rules).
¶19 In New York, an adoption proceeding is “deemed filed” when
the clerk of the court receives the required filings. See N.Y. Dom. Rel. Law
§ 115 (1)(a) (McKinney 2008) (private placement adoptions shall be
“effected in the same manner” as adoptions from authorized agencies);
N.Y. Dom. Rel. Law §§ 112 to -112-a(1) (McKinney 2005) (authorized agency
adoption shall be “deemed filed” upon clerk of the court’s receipt of
designated documents which include petition and necessary consents);
N.Y. C.P.L.R. 304, 2102 (McKinney 2008). Similarly, in Arizona, an adoption
proceeding is commenced when the adoption petition is filed. See A.R.S. §§
8-104, 8-108 to -109 (2014); Ariz. R.P. Juv. Ct. 79. And, similarly, in Arizona,
a paternity proceeding begins when the paternity petition is filed with the
court. A.R.S. § 25-806 (Supp. 2015); see also A.R.S. § 25-1002(5) (proceeding
commenced under UCCJEA when first pleading filed); Ariz. R. Fam. Law.
P. 23 (family law action commenced by filing petition with clerk of the
court). Thus, under the law of either state, merely signing a consent to adopt
does not “commence” an adoption proceeding or make it pending. As
noted above, the record before us contains no evidence Intervenors filed the
adoption proceeding in New York on or before October 30, 2014—the day
Ramirez filed the paternity petition in Arizona. Therefore, in accordance
with Arizona law and under 28 U.S.C.A. § 1738A(g), Ramirez’s paternity
action was pending in Arizona before Intervenors “commenced” the
adoption proceeding in New York. Arizona was the first state under 28
U.S.C.A. § 1738A(g).
¶20 Intervenors, nevertheless, argue the family court was
obligated to give the New York adoption order full faith and credit under
the PKPA because New York entered the first “custody determination”9
concerning the child. 28 U.S.C.A. § 1738A(a) (state “shall enforce” and not
modify, except as authorized by the PKPA, custody determination made
consistently with the PKPA). In making this argument Intervenors
8The UCCJA preceded the UCCJEA. See generally Welch-Doden
v. Roberts, 202 Ariz. 201, 206-08, ¶¶ 24-32, 42 P.3d 1166, 1171-73 (App. 2002).
9Under the PKPA, a custody determination “means a
judgment, decree, or other order of a court providing for the custody of a
child, and includes permanent and temporary orders, and initial orders and
modifications.” 28 U.S.C.A. § 1738A(b)(3).
9
RAMIREZ v. BARNET
Opinion of the Court
acknowledge the family court entered the emergency temporary order on
November 6, 2014—well before the New York court entered the adoption
order. But they argue the emergency temporary order was void because the
family court did not have jurisdiction to issue it, and therefore, the New
York adoption order was the first-in-time “custody determination” under
the PKPA and entitled to full faith and credit. The full faith and credit issue,
however, does not turn on the validity of the family court’s temporary
order.10 Rather, the full faith and credit issue presented here turns on the
date Ramirez “commenced” the Arizona paternity proceeding. This is
because the jurisdictional bar imposed by 28 U.S.C.A. § 1738A(g) applies
even when the first state has not yet made a custody determination.
¶21 Section 1738A(g) prohibits a state court from exercising
jurisdiction in any custody or visitation proceeding “commenced” in that
state “during the pendency of a proceeding in a court of another State
where such court of that other State is exercising jurisdiction consistently
with the provisions of this section to make a custody or visitation
determination.” As other courts have recognized, the jurisdictional bar
imposed by 28 U.S.C.A. § 1738A(g) applies when a proceeding is pending
in the first state and the petitioner in that proceeding is asking the court to
enter a custody or visitation determination. Ex Parte D.B., 975 So. 2d 940,
955 (Ala. 2007) (28 U.S.C.A. § 1738A(g)’s jurisdictional bar applies even
when the first state has not yet entered a custody determination); B.B.R.,
10Intervenors argue the temporary order was void because,
pending a judicial determination of paternity, A.R.S. § 25-817 (Supp. 2015)
only authorizes a court to issue a temporary custody or parenting time
order under certain circumstances, none of which they assert existed here.
Although the record does not reflect these conditions existed before the
family court entered the temporary order, that order was not void, albeit
arguably erroneous; an erroneous order or judgment is voidable, not void.
A judgment or order is void only if the court lacks jurisdiction over the
parties, jurisdiction over the subject matter, or jurisdiction to render the
particular judgment or order entered. Cockerham v. Zikratch, 127 Ariz. 230,
234-35, 619 P.2d 739, 743-44 (1980); Martin v. Martin, 182 Ariz. 11, 15, 893
P.2d 11, 15 (App. 1995). Recognizing this, Intervenors argue the temporary
order was void because the family court did not have jurisdiction to render
it unless the statutory conditions were met. In making this argument,
Intervenors cite Thornsberry v. Superior Court, 146 Ariz. 517, 707 P.2d 315
(1985). But, in Thornsberry, the superior court lacked jurisdictional authority
to act in a class of cases. Id. In contrast, A.R.S. § 25-817 authorized the court
to issue temporary orders in pending paternity actions subject to certain
requirements.
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RAMIREZ v. BARNET
Opinion of the Court
566 A.2d at 1037 n.13 (under 28 U.S.C.A. § 1738A(g), if proceeding was
pending in California when proceeding was filed in District of Columbia
and California court was exercising jurisdiction consistently with the
PKPA, then District was “precluded from proceeding with any action”
concerning child; 28 U.S.C.A. § 1738A(g) “establishes a first-in-time rule for
determining which state’s jurisdiction is to be exclusive”); Matter of C.A.D.,
839 P.2d 165, 172-73 (Okla. 1992) (28 U.S.C.A. § 1738A(g)’s jurisdictional bar
does not require first state to have issued an enforceable order before
second state is barred from proceeding; “This principle prevents two or
more states from exercising concurrent jurisdiction and discourages an
interstate race for a more favorable forum.”) (emphasis omitted); In re
Marriage of Payne, 899 P.2d 1318, 1323 (Wash. Ct. App. 1995) (under 28
U.S.C.A. § 1738A(g), pendency of custody proceeding in first state bars
court in second state from exercising jurisdiction). Further, construing 28
U.S.C.A. § 1738A(g) to require the first state to have made a custody
determination would render the words of that section—“is exercising
jurisdiction . . . to make a custody” determination—meaningless.
¶22 Accordingly, 28 U.S.C.A. § 1738A(g)’s jurisdictional bar was
triggered when Ramirez filed his paternity petition. Thus, if the family
court was exercising jurisdiction “consistently” with the PKPA, then the
family court was not required to give full faith and credit to the New York
adoption order.11
¶23 A state court exercises jurisdiction “consistently with the
provisions” of the PKPA if, first, as required by 28 U.S.C.A. § 1738A(c)(1),
it has jurisdiction under its own laws (“the state law requirement”), and
11To the extent Intervenors rely on Baby Girl F., 932 N.E.2d 428,
in arguing that only the first “custody determination” is entitled to full faith
and credit, we disagree. Although Baby Girl F held a South Carolina “order”
was the first custody determination, the question before the court was
whether the South Carolina court was entitled to modify a prior Illinois
guardianship order. Id. at 440 (emphasis added). The court held the Illinois
guardianship order did not constitute a “custody determination” because
there were “no pleadings filed in connection with the [guardianship]
proceeding[.]” Id. at 438-39 (emphasis added). The South Carolina adoption
petition was the first pleading filed. Id. at 431. This is consistent with our
conclusion, and the authorities cited in the text, that under 28 U.S.C.A. §
1738A(g), the court must first determine whether a custody proceeding is
pending in another state.
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RAMIREZ v. BARNET
Opinion of the Court
second, as required by 28 U.S.C.A. § 1738A(c)(2), it has jurisdiction under
one of the PKPA jurisdictional provisions (“the PKPA jurisdictional
provisions”). Under the PKPA jurisdictional provisions, the state must be
the child’s home state when the proceeding commenced, or the child’s
home state within six months before the proceeding commenced if certain
additional requirements are met (“home state jurisdictional provision”), 28
U.S.C.A. § 1738A(c)(2)(A),12 or, if no state is the child’s home state, the state
must have jurisdiction under one of the four other jurisdictional provisions
in 28 U.S.C.A. § 1738A(c)(2).13
¶24 On appeal, Intervenors have not challenged the family court’s
exercise of jurisdiction under the PKPA’s state law requirement, even
though the jurisdictional requirements of the PKPA and the UCCJEA are
similar.14 Thus, they have not argued the family court did not have
jurisdiction of Ramirez’s paternity action under the UCCJEA. Instead, they
argue the family court was required to give full faith and credit to the New
York adoption order because the child had no home state under the PKPA
and, thus, under the PKPA alternative jurisdictional provision relevant
12Section 1738A(c)(2)(A) reads in full as follows:
[S]uch State (i) is the home State of the child on
the date of the commencement of the
proceeding, or (ii) had been the child’s home
State within six months before the date of the
commencement of the proceeding and the child
is absent from such State because of his removal
or retention by a contestant or for other reasons,
and a contestant continues to live in such State.
13As is clear from the wording of 28 U.S.C.A. § 1738A(c)(2),
the PKPA prioritizes home state jurisdiction over the four alternative
jurisdictional provisions contained in that section. The UCCJEA also
prioritizes home state jurisdiction. See generally Welch-Doden, 202 Ariz. at
206-08, ¶¶ 24-32, 42 P.3d at 1171-73 (App. 2002).
14For example, in the case of a child less than six months old,
the PKPA defines home state as the state “in which . . . the child lived from
birth with his parents, a parent, or a person acting as a parent.” 28 U.S.C.A.
§ 1738A(b)(4). Section 25-1002(7)(b) of the UCCJEA contains nearly
identical language.
12
RAMIREZ v. BARNET
Opinion of the Court
here, the “best interests” provision contained in 28 U.S.C.A. §
1738A(c)(2)(B), only New York, and not Arizona, could exercise jurisdiction
over the child consistent with the PKPA. As we understand their argument,
any action taken by the family court in connection with Ramirez’s paternity
petition would not be consistent with the provisions of the PKPA, and thus
the New York adoption proceeding was exempt from 28 U.S.C.A.
§ 1738A(g)’s jurisdictional bar. As we explain, even assuming the child did
not have a home state under the PKPA, the New York adoption proceeding
was still subject to 28 U.S.C.A. § 1738A(g).
¶25 The PKPA defines home state as the state
in which, immediately preceding the time
involved, the child lived with his parents, a
parent, or a person acting as a parent, for at least
six consecutive months, and in the case of a child
less than six months old, the State in which the child
lived from birth with any of such persons. Periods
of temporary absence of any of such persons are
counted as part of the six-month or other
period.
28 U.S.C.A. § 1738A(b)(4) (emphasis added).
¶26 Relying on the italicized language in the definition of home
state quoted above, Intervenors argue the child had no home state under
the PKPA because at the commencement of the proceeding the child had
not “lived from birth” with a person identified in the definition of home
state.15 In support, Intervenors cite authorities that have interpreted the
PKPA’s definition of home state for a child less than six months old to mean
that a baby born in one state and transported shortly after birth to another
state has no home state. See Adoption of Zachariah K., 8 Cal. Rptr. 2d 423, 430
(Cal. Ct. App. 1992); B.B.R., 566 A.2d at 1038; Baby Girl F., 932 N.E.2d at 440;
Matter of Adoption of Child by T.W.C., 636 A.2d 1083, 1088-89 (N.J. Super. Ct.
App. Div. 1994). As one commentator has explained:
15In making this argument, Intervenors have not specified
which proceeding—Ramirez’s paternity proceeding or their adoption
proceeding—they are referring to. But, based on the authorities they have
cited in support of this argument, the crux of their argument is that the child
had not lived from birth in either Arizona or New York vis-à-vis either
proceeding.
13
RAMIREZ v. BARNET
Opinion of the Court
[I]n order for a child less than six months old at
the commencement of the proceedings to satisfy
the definition of “home state” under . . . the
PKPA, the child must have “lived from birth” in
a state with a parent or a person acting as a
parent. Almost by definition, an infant involved
in interstate adoption proceedings will not
satisfy that condition: a child that is born to
biological parents in one state and then is
shortly thereafter placed with prospective
adoptive parents in another state has not “lived
from birth” in either state. Most courts to
address this issue have interpreted the “home
state” definition in this literal manner. Most
adopted infants have no “home state” under . . .
the PKPA.
Greg Waller, When the Rules Don't Fit the Game: Application of the Uniform
Child Custody Jurisdiction Act and the Parental Kidnaping Prevention Act to
Interstate Adoption Proceedings, 33 Harv. J. on Legis., 271, 289–90 (1996)
[hereinafter “Waller”].
¶27 Assuming without deciding the child had no home state, the
applicable PKPA alternative ground for jurisdiction, the best interest
provision contained in 28 U.S.C.A. § 1738A(c)(2)(B), entitled the family
court to exercise jurisdiction over the child and thus the family court’s
exercise of jurisdiction over the child was consistent with the PKPA as 28
U.S.C.A. § 1738A(g) requires. When there is no home state, a state will
exercise jurisdiction to make a custody determination consistent with the
PKPA if it is in the “best interest of the child” for that state to assume
jurisdiction because “the child and his parents, or the child and at least one
contestant,[16] have a significant connection with such State other than mere
physical presence” and “substantial evidence” is available in that state
“concerning the child’s present or future care, protection, training and
personal relationships.”17 28 U.S.C.A. § 1738A(c)(2)(B). To determine
16Under the PKPA, “‘contestant’ means a person, including a
parent or grandparent, who claims a right to custody or visitation of a
child.” 28 U.S.C.A. § 1738A(b)(2).
17TheUCCJEA contains a similar jurisdictional provision, see
A.R.S. § 25-1031(A)(2), although that provision does not refer to a child’s
best interests.
14
RAMIREZ v. BARNET
Opinion of the Court
whether a child has a significant connection to a state, courts consider a
variety of factors, including the nature and quality of the child’s contacts
with the state, the nature and quality of the parent or contestant’s contacts
with the state, and, consistent with the statutory language, the nature and
quality of the evidence concerning the child’s present or future care,
protection, training, and personal relationships. See B.B.R., 566 A.2d at 1038-
39; T.W.C., 636 A.2d at 1089; Zachariah K., 8 Cal. Rptr. 2d at 430 (citation
omitted).
¶28 Applying these considerations here, the child was born in
Arizona, to a resident Arizona birth mother. At the evidentiary hearing,
Ramirez testified about his relationship to Barnet and their plans to raise
and care for the child as their son. Further, the child would have remained
in Arizona if Intervenors had not taken him to New York. And, based on
his testimony at the evidentiary hearing, Ramirez, an Arizona resident,
presented a colorable claim to being the child’s father.
¶29 We acknowledge Intervenors and the child have similar
connections to New York. Barnet consented to the child’s adoption, and the
record reflects she understood Intervenors intended for the child to live
with them in New York. And, of course, Intervenors have relevant
information regarding the child and the adoption order entered in New
York. Although, in our view, both states have similar significant
connections and substantial relevant evidence is available in both states,18
the PKPA prohibits the exercise of concurrent jurisdiction by requiring that
a state abstain from exercising jurisdiction when proceedings concerning
the same child are pending in another state. 28 U.S.C.A. § 1738A(g). In that
situation—when no state is a child’s home state and two states could
assume jurisdiction under the best interest provision contained in 28
U.S.C.A. § 1738A(c)(2)(B)—but only one state may properly exercise
jurisdiction, the first state under 28 U.S.C.A. § 1738A(g) will have exclusive
jurisdiction. See B.B.R., 566 A.2d at 1039 n.23 (discussing cases and
authorities). As one commentator has explained:
In nearly all interstate adoption cases, both the
state of the natural parents and the state of the
adoptive parents could be found to satisfy the
18Zachariah K., 8 Cal. Rptr. 2d at 430, concluded both states had
significant connections when the child was born in California and taken to
Oregon days later. Similarly, T.W.C., 636 A.2d at 1089 (citations omitted),
recognized that the child may have a significant connection to the birth state
in addition to the state where he has lived with the adoptive parents.
15
RAMIREZ v. BARNET
Opinion of the Court
“significant connection” and the “substantial
evidence” requirements . . . . Though either state
could be found to have jurisdiction under
the . . . PKPA, only one state may exercise
jurisdiction at a time . . . . Thus, because the
“home state” concept, as drafted, does not
accommodate the practical elements of
interstate infant adoptions, infant adoption
cases under the . . . PKPA are functionally
governed by a “race-to-the-courthouse” rule of
jurisdiction. In short, when the . . . PKPA is
applied to the typical interstate infant adoption
case, neither state will satisfy “home state”
jurisdiction and both states will satisfy “best
interest” jurisdiction. Since only one state may
properly exercise jurisdiction, the first to file
will be the winner of the jurisdictional battle.
Waller, supra ¶ 26, at 290-91. Further, when, as here, two states have
significant connections, a court should not, as Intervenors acknowledge,
weigh one state’s connections against the other state’s connections. See
B.B.R., 566 A.2d at 1039 n.23; T.W.C., 636 A.2d at 1089.
¶30 Even though Intervenors acknowledge a court should not
weigh one state’s significant connections against another state’s significant
connections, they stress that the child has lived with them his “entire life—
but for the circumstances of his birth.” In stressing that point, Intervenors
are implicitly suggesting that the relevant time for measuring significant
connections is the present, and not when Ramirez filed his paternity action
or even when they filed their adoption proceeding. We disagree with that
suggestion, and agree with the court in B.R.R., 556 A.2d at 1040, that
[j]urisdiction is an initial and key element to be
determined in any judicial proceeding and to
make it a shifting, chameleon-like issue would
be counter not only to normal legal principles
but also to the structure of the [PKPA]. Thus, in
subsection (A), “home State” status is
determined as of the “commencement of the
proceeding,” . . . and we see no reason why the
same should not apply to [28 U.S.C.A.
§ 1738A(c)(2)(B)]. Furthermore, we cannot
believe that the [PKPA] contemplates an
16
RAMIREZ v. BARNET
Opinion of the Court
approach that would enable a contesting party,
particularly where wrongdoing is involved, to
build up connection time in his or her state,
thereby frustrating one of Congress’ purposes
in enacting the PKPA—to “deter interstate
abductions and other unilateral removals of
children undertaken to obtain custody and
visitation awards.”
¶31 In sum, Ramirez’s paternity proceeding was pending in the
family court in Arizona, and the family court was exercising jurisdiction
consistently with the PKPA, before the New York court issued the adoption
order. Under 28 U.S.C.A. § 1738A(g), the New York court was barred from
exercising jurisdiction over the child and the New York adoption order is
not entitled to full faith and credit.19
II. Jurisdiction Under the UCCJEA
¶32 As noted, Ramirez argues the family court should not have
dismissed his paternity petition under the UCCJEA. And, as noted above,
Intervenors have not challenged the family court’s jurisdiction under the
UCCJEA even though the jurisdictional bar imposed by 28 U.S.C.A. §
1738A(g) requires a state court to have jurisdiction under its own laws. See
supra ¶¶ 23-24. Given this requirement, however, we briefly address the
family court’s jurisdiction over Ramirez’s paternity action under the
UCCJEA.
¶33 First, Ramirez filed his paternity proceeding in compliance
with the UCCJEA, and the UCCJEA governed his paternity proceeding. See
supra ¶ 14. Second, given that the definition of home state under the
UCCJEA is virtually identical to the PKPA’s definition of home state, even
19Both parties refer to the family court’s failure to hold a
UCCJEA conference with the New York court. The family court failed to
meet its obligation to hold such a conference in a timely manner and failed
to expedite the paternity test or the trial. See A.R.S. § 25-807(A) (Supp. 2015)
(paternity proceedings have precedence over civil matters and court must
set a trial within 60 days from the respondent’s answer). These failures do
not affect our holding that 28 U.S.C.A. § 1738A(g) barred the New York
court from exercising jurisdiction over the child, and the New York
adoption order is not entitled to full faith and credit.
17
RAMIREZ v. BARNET
Opinion of the Court
if we assume the child had no home state under the UCCJEA when Ramirez
filed the paternity petition,20 for the reasons discussed in ¶ 28 supra, the
family court had jurisdiction to make an initial custody determination
under the UCCJEA’s “substantial connection” provision. See A.R.S.
§ 25-1031(A)(2); see also Ariz. Dep’t of Econ. Sec. v. Grant ex rel. Maricopa Cty.,
232 Ariz. 576, 307 P.3d 1003 (App. 2013) (discussing UCCJEA substantial
connection provision). Accordingly, the family court had jurisdiction over
Ramirez’s paternity petition under the UCCJEA and should not have
dismissed it.
CONCLUSION, REMAND, AND COSTS ON APPEAL
¶34 The New York court entered the adoption order in violation
of 28 U.S.C.A. § 1738A(g), and, therefore, the New York adoption order was
not entitled to full faith and credit. Further, the family court had jurisdiction
over Ramirez’s paternity proceeding under the UCCJEA and should not
have dismissed it. We thus reverse the family court’s order dismissing
Ramirez’s paternity petition and remand to the family court for further
proceedings consistent with this opinion. On remand, the family court shall
order Ramirez to properly serve Intervenors in the paternity proceeding.
Furthermore, the family court shall order Ramirez and the child to submit
to a paternity test pursuant to A.R.S. § 25-807. See A.R.S. § 25-1031(C)
(“Physical presence or personal jurisdiction over a party or a child is not
necessary or sufficient to make a child custody decision.”); cf. Taylor v.
Jarrett, 191 Ariz. 550, 552, ¶ 8, 959 P.2d 807, 809 (App. 1998) (“[U]nder the
UCCJA, an Arizona court need not secure personal jurisdiction over a non-
resident party in order to adjudicate custody and visitation issues.”).21 If the
20Several state courts have held that under the UCCJEA’s
definition of home state, a baby born in one state and transported shortly
after birth to another state has no home state. See Adoption House, Inc. v. A.R.,
820 A.2d 402 (Del. Fam. Ct. 2003); Carl v. Tirado, 945 A.2d 1208 (D.C. 2008);
In re D.S., 840 N.E.2d 1216 (Ill. 2005); In re A.W., 94 A.3d 1167 (Vt. 2014); see
generally Andrea Charlow, There’s No Place Like Home: Temporary Absences in
the UCCJEA Home State, 28 J. Am Acad. Matrim. Law. 25, 38 (2015).
21The Comment to UCCJEA § 201, which is identical to A.R.S.
§ 25-1031, states: “Personal jurisdiction over, or the physical presence of, a
parent or the child is neither necessary nor required under this Act. In other
words, neither minimum contacts nor service within the State is required
for the court to have jurisdiction to make a custody determination.”
UCCJEA, § 201, cmt. 2 (Unif. Law Comm’n 1997); See also Joan M.
18
RAMIREZ v. BARNET
Opinion of the Court
test results confirm Ramirez’s paternity, the family court may, in the proper
exercise of its discretion, initiate a conference with the New York court to
consider whether to continue exercising jurisdiction under the UCCJEA. See
generally A.R.S. § 25-1037 (inconvenient forum). Finally, as the successful
party on appeal, we award Ramirez costs on appeal contingent upon his
compliance with Arizona Rule of Civil Appellate Procedure 21. See A.R.S. §
12-342 (2016).
AMY M. WOOD • Clerk of the Court
FILED: AA
Shaughnessy, The Other Side of the Rabbit Hole: Reconciling Recent Supreme
Court Personal Jurisdiction Jurisprudence with Jurisdiction to Terminate Parental
Rights, 19 Lewis & Clark L. Rev. 811, 813 (2015).
19