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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
OPELIA RAE ANTHONY, Petitioner,
v.
THE HONORABLE KAY H. WILKINS, Judge Pro Tem of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
APACHE, Respondent Judge Pro Tem,
CHRISTOPHER ANTHONY, Real Party in Interest.
No. 1 CA-SA 15-0237
FILED 9-24-2015
Petition for Special Action from the Superior Court in Apache County
No. DO 2014-118
The Honorable Kay H. Wilkins, Judge Pro Tem
JURISDICTION ACCEPTED, RELIEF GRANTED
COUNSEL
By Gary L. Thomas, Phoenix
Counsel for Petitioner
Hamblin Law Office, P.L.C., Eagar
By Bryce M. Hamblin
Counsel for Real Party in Interest
ANTHONY v. HON WILKINS/ANTHONY
Decision of the Court
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
G E M M I L L, Judge:
¶1 Petitioner Ophelia Anthony (“Mother”) seeks special action
review of the Apache County Superior Court’s order awarding Real Party
in Interest Christopher Anthony (“Father”) legal decision-making and
parenting time of their child, E.B. Mother argues that Apache County
lacked jurisdiction to determine legal decision-making authority and
parenting time for E.B. We accept jurisdiction and grant relief as described
herein. See J.D.S. v. Franks, 182 Ariz. 81, 84 (1995) (treating as a special action
a challenge to Arizona’s jurisdiction over a child custody determination);
see also J.A.R. v. Superior Court in and for Cnty. of Maricopa, 179 Ariz. 267, 272-
73 (App. 1994).
¶2 Mother argues that an Arizona state court is not the proper
forum to determine legal decision-making or parenting time for E.B.
because Arizona is not E.B.’s “home state.” Under the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”) as adopted in
Arizona, Ariz. Rev. Stat. (“A.R.S.”) §§ 25-1001 to -1067, a child’s home state
has original and exclusive jurisdiction over initial child custody
determinations. A.R.S. § 25-1031(A)(1). A home state is “the 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.” A.R.S. § 25-1002(7)(a). Mother asserts E.B. has “never
resided in Arizona for ‘home state purposes,’” but instead lived and still
lives on the Navajo Indian Reservation. The UCCJEA provides that an
“Indian tribe” is treated as a separate state for purposes of making a home
state determination. A.R.S. § 25-1004. Mother therefore argues that the
Navajo Nation, rather than Arizona, is E.B.’s home state.
¶3 An Arizona court making a determination of child custody
must confirm its authority to do so:
Before it conducts a proceeding concerning legal decision-
making or parenting time, including a proceeding to
determine the legal decision-making or visitation of a
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ANTHONY v. HON WILKINS/ANTHONY
Decision of the Court
nonparent, a court in this state first must confirm its authority to
do so to the exclusion of any other state, Indian tribe or foreign
nation by complying with the uniform child custody
jurisdiction and enforcement act, the parental kidnapping
prevention act and any applicable international law
concerning the wrongful abduction or removal of children.
A.R.S. § 25-402 (emphasis added). In this case, the Superior Court directed
the parties to submit memoranda regarding its jurisdiction to make legal
decision-making and parenting time determinations concerning E.B. The
court then concluded it had jurisdiction over E.B. Neither party, however,
addressed the specific issue of E.B.’s home state under the UCCJEA in
memoranda submitted to the court, and the record before us does not
sufficiently indicate whether the child’s home state is Arizona, the Navajo
Nation, or another state. It is also unclear from our limited record whether
the parties complied with A.R.S. § 25-1039 by submitting to the court, under
oath, information about the child’s past and present living situations. As a
result, we are unable to determine whether the court adequately confirmed
its authority to determine legal decision-making and parenting time
regarding E.B.
¶4 Accordingly, we vacate the Apache County Superior Court’s
under advisement order filed August 19, 2015 and direct the court to make
specific findings of fact and conclusions of law regarding E.B.’s home state
in accordance with A.R.S. §§ 25-402 and 25-1031. The court in its discretion
may solicit additional evidence or may determine it already has sufficient
evidence to make the necessary findings of fact and conclusions of law.
Additionally, we hereby lift the stay of custody proceedings granted by this
court in its order filed September 3, 2015.
¶5 Both parties have requested attorney fees under A.R.S. § 25-
324(B) and Arizona Rule of Procedure for Special Actions 4(g). In our
discretion, we decline to award attorney fees to either party. Mother is
entitled to her taxable costs in this proceeding upon compliance with
Arizona Rule of Procedure for Special Actions 4(g).
:ama
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