The Court of Appeals of Arizona denied Father’s appeal where he argued that the trial court improperly assumed child custody jurisdiction under the UCCJEA over their dual Italian-U.S. son who was born in Tunisia in March 2018. In February 2020, the parties traveled to Italy for a vacation. COVID-19 hit. While they could have returned to Tunisia, they chose to remain in Italy. Shortly thereafter, Tunisia closed its borders. On April 13, 2020, Mother and child flew to the U.S. on a repatriation flight only for U.S. citizens. The Father was not permitted to join them, but drove them to the Italian airport for their flight. On June 27, 2020, the Father returned to Tunisia (the first day it reopened its borders). Mother and Child remained in Arizona since April 13, 2020. On November 3, 2020, Mother filed for paternity, legal decision-making, parenting time, and child support in Arizona. Mother alleged, in her complaint, that she relocated to Arizona to protect her and the child from domestic violence, perpetrated by the Father. On January 12, 2021, a process server posted a copy of the filing on Father’s door in Tunisia. Two months later, Father sought to dismiss the Arizona action for lack of subject matter and personal jurisdiction. He argued the child was “temporarily absent” from Tunisia, and therefore, Tunisia remained the child’s home state. Ultimately, the court concluded that Tunisia was the child’s home state before Mother and child traveled to the United States, but that at the time Mother filed the lawsuit, Arizona was the child’s home state based on her communications with the Father and the fact that the child had lived with her for more than six consecutive months in Arizona prior to the suit’s commencement. Since Arizona had not yet defined “temporary absence,” the Court of Appeals accepted special jurisdiction in this case.
“Although the UCCJEA “[wa]s meant to be interpreted uniformly across jurisdictions,” states have adopted three different tests to evaluate whether an absence is temporary for purposes of determining a child’s home state: (1) the duration test, (2) the intent test, and (3) the totality of the circumstances test.” In this case, the Court of Appeals of Arizona decided to adopt the totality of the circumstances test, stating “we [will] consider “all the surrounding circumstances of a purported temporary absence, including [the] intent of the parties and [the] duration of [the] absence, to assess whether the absence should be treated as a temporary departure from a putative home state.” Based on all the communications between Mother and Father, the court believed that Father had reason to believe that the relocation to Arizona was to be permanent.
As a quick note, this case did not address whether there was jurisdiction under UIFSA for child support. It is also not a Hague Abduction Convention return petition. While Tunisia has acceded to that Convention, the U.S. has yet to accept that accession. There was additionally a footnote that made note that the Mother never argued the escape clause in the UCCJEA. In other words, she did not assert that Tunisia’s child custody laws violate fundamental principles of human rights, even though she did indicate she felt that Tunisia had no resources to protect her and the child from abuse.