Williams v. Haddad ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
CHARLES RUSSELL WILLIAMS, Petitioner/Appellant,
v.
KARIMA HADDAD, Respondent/Appellee.
__________________________________
No. 1 CA-CV 18-0746 FC
FILED 9-12-2019
Appeal from the Superior Court in Maricopa County
No. FC2018-091883
The Honorable Laura M. Reckart, Judge
AFFIRMED
COUNSEL
Schill Law Group, PLLC, Scottsdale
By John Schill
Counsel for Petitioner/Appellant
WILLIAMS v. HADDAD
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.
C R U Z, Judge:
¶1 Petitioner/Appellant Charles Russell Williams (“Father”)
appeals the superior court’s order dismissing his petition to establish legal
decision making and parenting time and his petition to enforce a physical
child custody order. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Respondent/Appellee Karima Haddad
(“Mother”), who never married, are the parents of two minor children.
Mother is a Dutch citizen and both children were born in the Netherlands
and lived there with Mother. Father is an American citizen who resides in
Arizona.
¶3 At the end of June 2018, Mother and the children came to
Arizona and stayed with Father at his home. Father asserts that Mother
planned to move with the children to Arizona at that time, but Mother
denied that she or the children ever lived or intended to live in Arizona.
¶4 On July 2, 2019, Father obtained an order of protection against
Mother in favor of himself and the children, claiming that Mother had
attacked him with a knife in front of the children and had previously
abused the children. Father also initiated the underlying action with a
petition to establish legal decision making and parenting time. The
superior court granted Father’s ex parte request for temporary emergency
legal decision making and physical custody of the children. The following
day, the court entered an order directing Mother to produce the children to
Father or a law enforcement agency. Mother immediately left Arizona with
the children and ultimately returned to the Netherlands.
¶5 Although it is unclear from the record whether Mother was
served with the order of protection and petition for temporary legal
decision making and physical custody, she appeared and testified
telephonically at the court’s return hearing on the temporary orders. After
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WILLIAMS v. HADDAD
Decision of the Court
the hearing, the court entered an order establishing Father’s paternity and
extended the temporary orders.
¶6 Mother then moved to dismiss Father’s petition to establish
legal decision making and parenting time and the court’s temporary orders,
claiming that because the children were born and raised in the Netherlands
and had spent less than one month in Arizona, the court lacked jurisdiction
to enter custody orders under the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”), codified in Arizona Revised Statutes
(“A.R.S.”) sections 25-1001 to -1067.
¶7 Father argued that Mother had waived service and entered a
general appearance by participating telephonically in the return hearing
and therefore could not contest the court’s jurisdiction. He also asserted
that the superior court had jurisdiction under A.R.S. § 25-1031(A)(2) or 25-
1031(A)(3) because no other court would take jurisdiction of the case and
the children have significant contacts with Arizona. He further maintained
jurisdiction was proper because Arizona was the children’s “habitual
residence,” and Arizona had an interest in protecting the children of an
Arizona citizen who are of tender years and unable to protect themselves
from Mother’s alleged abuse.
¶8 The superior court ruled it lacked jurisdiction and granted the
motion to dismiss. Father timely appealed. We have jurisdiction pursuant
to A.R.S. § 12-2101(A)(1).
ISSUES
¶9 Father argues the superior court erred in dismissing his
petition to establish legal decision making and parenting time because
Mother subjected herself and the children to Arizona’s jurisdiction and
Arizona statutory law grants the court jurisdiction. He further contends the
court abused its discretion by not holding a hearing and making a factual
determination regarding whether Arizona is the children’s habitual
residence.
DISCUSSION
¶10 Whether a court has jurisdiction under the UCCJEA is a
question of law that this court reviews de novo. In re Ramirez v. Barnet, 241
Ariz. 145, 149, ¶ 12 n.5 (App. 2016).
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WILLIAMS v. HADDAD
Decision of the Court
I. Personal Jurisdiction Over Mother
¶11 Father argues that Mother’s telephonic appearance at the
superior court’s return hearing had the same effect as if she had been
properly served with his petition to establish legal decision making and
parenting time, see Arizona Rule of Family Law Procedure 40(f)(3), and,
therefore, the court had jurisdiction over Mother and the children.1
However, even assuming the superior court gained personal jurisdiction
over Mother, her telephonic appearance alone would not have conferred
jurisdiction on the court to consider Father’s petition for legal decision
making and parenting time. “Physical presence of or personal jurisdiction
over a party or a child is not necessary or sufficient to make a child custody
determination.” A.R.S. § 25-1031(C). Instead, the court must conduct a
separate jurisdictional analysis under the UCCJEA.
II. Jurisdiction Under the UCCJEA
¶12 The UCCJEA provides that a court “has jurisdiction to make
an initial child custody determination” if any of the following are true:
1. This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of
the child within six months before the commencement of the
proceeding and the child is absent from this state but a parent
or person acting as a parent continues to live in this state.
2. A court of another state does not have jurisdiction under
paragraph 1 or a court of the home state of the child has
declined to exercise jurisdiction on the ground that this state
is the more appropriate forum under § 25-1037 or 25-1038 and
both of the following are true:
1 Father also asserts that because Mother’s appearance had the same
effect as proper service of the petition, her removal of the children from the
United States was wrongful under the Hague Convention on the Civil
Aspects of International Child Abduction (“Hague Convention”), which
the United States Congress implemented through the International Child
Abduction Remedies Act, 22 U.S.C. § 9001 (formerly 42 U.S.C. § 11601). We
discuss the Hague Convention infra.
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WILLIAMS v. HADDAD
Decision of the Court
(a) The child and the child’s parents, or the child and at least
one parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning
the child’s care, protection, training and personal
relationships.
3. All courts having jurisdiction under paragraph 1 or 2 have
declined to exercise jurisdiction on the ground that a court of
this state is the more appropriate forum to determine the
custody of the child under § 25-1037 or 25-1038.
A.R.S. § 25-1031(A).2
¶13 A “home state” is defined as “[t]he state in which a child lived
with a parent or a person acting as a parent for at least six consecutive
months immediately before the commencement of a child custody
proceeding, including any period during which that person is temporarily
absent from that state.” A.R.S. § 25-1002(7)(a). The evidence shows that the
Netherlands has jurisdiction as the children’s home state under § 25-
1031(A)(1) because the children had lived there since birth.
¶14 Father does not dispute that the Netherlands is the children’s
home state but argues that Arizona has jurisdiction to make a custody
determination under § 25-1031(A)(2) or 25-1031(A)(3) because the
Netherlands will not consider a custody request from an unwed father
unless the mother grants the father certain parental rights and the children
have significant contacts with Arizona. Those subsections, however, do not
apply simply when a home state’s custody laws may disadvantage a party.3
Rather, when Arizona is not a child’s home state, an Arizona court may
only exercise jurisdiction when the home state has declined jurisdiction on
the basis that Arizona is the more appropriate forum. A.R.S. § 25-
1031(A)(2), (3).
2 Foreign countries are treated as if they are “state[s] of the United
States” for purposes of resolving jurisdiction. A.R.S. § 25-1005(A).
3 Although an Arizona court may decline to apply the UCCJEA if “the
child custody law of a foreign country violates fundamental principles of
human rights,” A.R.S. § 25-1005(C), Father does not argue that this
provision applies in this case.
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WILLIAMS v. HADDAD
Decision of the Court
¶15 There is no evidence in the record that Father has asked a
Dutch court to exercise jurisdiction over his custody petition or that it has
declined to do so on the basis that Arizona is the more appropriate forum.
Accordingly, this court will not consider whether Arizona could exercise
jurisdiction under § 25-1031(A)(2) or 25-1031(A)(3). See Welch-Doden v.
Roberts, 202 Ariz. 201, 205-06, ¶ 19 (App. 2002) (stating that when another
state is a child’s “home state,” that state has initial jurisdiction “regardless
of any significant connections” to the forum state); see also Ariz. Dep’t of
Econ. Sec. v. Grant, 232 Ariz. 576, 579-81, ¶¶ 7-12 (App. 2013) (holding
Arizona court had jurisdiction under § 25-1031(A)(2) over children who did
not have a “home state” as defined by § 25-1031(A)(1) and had “significant
connections” to the state).
¶16 We also reject Father’s argument that Arizona became the
children’s home state under A.R.S. § 25-1034(B). That statute directs that
when a court has issued temporary emergency orders concerning a child
who is present in the state, and no custody proceeding is commenced in a
court of a state that has jurisdiction under § 25-1031, the temporary order
becomes a final determination “if it so provides and this state becomes the
home state of the child.” A.R.S. § 25-1034(B).
¶17 Because the children did not remain in Arizona for at least six
months, Arizona did not become their home state; therefore, the superior
court’s temporary order did not become a final determination.4 Father’s
suggestion—that a state may achieve “home state” status merely by issuing
temporary emergency orders even if the children do not remain in the
forum state as long as a custody proceeding is not commenced in another
state that has jurisdiction—is not consistent with the language of § 25-
1034(B) and would contradict § 25-1031.
III. The Hague Convention
¶18 Finally, Father contends that the superior court erred by not
holding a hearing to determine if Arizona was the children’s “habitual
residence.”
¶19 The issue of habitual residence, while not a consideration
under the UCCJEA, is relevant to a petition under the Hague Convention
for the return of children who have been wrongfully removed or retained.
4 While the superior court extended the temporary orders “until
further order of the [c]ourt,” it did not provide that those orders would
become a final determination.
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WILLIAMS v. HADDAD
Decision of the Court
The Hague Convention’s “focus is not the underlying merits of a custody
dispute but . . . whether a child should be returned to a country for custody
proceedings under that country’s domestic law.” Papakosmas v. Papakosmas,
483 F.3d 617, 621 (9th Cir. 2007). Father first made his request that the
superior court order the children be returned to Arizona under the Hague
Convention in his response to Mother’s motion to dismiss. Father’s request
was not brought in the proper forum. As a person seeking to initiate
judicial proceedings under the Hague Convention for the return of a child,
he must file a petition for such relief in a court “in the place where the child
is located at the time the petition is filed.” 22 U.S.C. § 9003(b) (formerly 42
U.S.C.
§ 11603). Thus, the superior court did not err by not holding a hearing to
determine whether Arizona was the children’s habitual residence under the
Hague Convention.
CONCLUSION
¶20 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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