I will no doubt be using this case, In Re Marriage of Margain, as an exam question for my law students.

Mother and Father married in Mexico in 2007, and had their child in California in 2008.  In 2010, and for at least a year and a half, the Mother and child moved to and lived in Mexico.  The Mother filed a divorce and custody suit in Mexico.  The Father fought jurisdiction.  He then removed the minor child to Arizona in 2012, despite an order prohibiting him from removing the child from Mexico.  The Mother filed a Hague Abduction Return petition in the federal court in Tucson, which was denied on the basis that the minor child did not change its habitual residence to Mexico, and that the Mother filed her petition more than one year after the child was removed to Arizona.  The Mother then secured a “definitive legal custody” order from Mexico, which she sought to register and enforce in Arizona under the UCCJEA.  The Arizona family court declined to register it on the basis that it was not made in “substantial conformity” with the UCCJEA.  The Mother appealed, and the Superior Court was reversed on the basis that Mexico was the child’s home state at the commencement of the custody suit in Mexico.  The Father argued that the Mexican custody order’s finality was in dispute (it was up on appeal).   The Supreme Court of Mexico ultimately determined, in 2018, that the Mexican family court had no authority to issue the initial custody order because of the U.S. federal court’s finding that the child was a habitual resident of the United States.  It concluded that Arizona should resolve custody, and the child (who, at the time of this order, was sitting in Mexico) should be returned to Arizona.

In November 2019, the Arizona family court determined that the Mexican Supreme Court’s 2018 decision did not “alter the efficacy of our court’s 2016 decision” because the Mexican Supreme Court declined jurisdiction for reasons that were “not mandated” for declining jurisdiction on an inconvenient forum ground (i.e., Mexico did not apply the factors in the UCCJEA). It concluded that Mexico continues to have exclusive jurisdiction over the custody decisions.  The Father appealed.

The Father argues Mexico declined jurisdiction.  The Mother argues that the declination is insufficient because the Mexican court did not consider the mandatory UCCJEA factors in determining whether Mexico was an inconvenient forum, and instead relied on the “habitual residence” finding in the Hague Abduction case.

Since a child’s “home state” has priority over rendering an initial child-custody determination, and the Arizona court determined that Mexico was the home state, Arizona can only exercise jurisdiction if the home state declines jurisdiction.  In this situation, Mexico both declined jurisdiction, and no other state (i.e., country) has jurisdiction.  There is no rule that says how Mexico must decline jurisdiction, or on what basis.  Mexico has no reason or obligation to follow the tenets of the UCCJEA.  The UCCJEA is not the law in Mexico.  It is otherwise appropriate here for Arizona (a UCCJEA jurisdiction) to accept jurisdiction when Mexico (a non-UCCJEA jurisdiction) clearly declined jurisdiction.