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

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

2

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. 
RAMIREZ v. BARNET

Opinion of the Court

3

¶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 

 

2At a subsequent evidentiary hearing, see infra ¶ 9, Barnet, 

through counsel, asserted Intervenors left Arizona with the child on 

November 1, 2014. 
RAMIREZ v. BARNET

Opinion of the Court

4

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).
RAMIREZ v. BARNET

Opinion of the Court

5

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.
RAMIREZ v. BARNET

Opinion of the Court

6

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).
RAMIREZ v. BARNET

Opinion of the Court

7

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.
RAMIREZ v. BARNET

Opinion of the Court

8

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.
RAMIREZ v. BARNET

Opinion of the Court

9

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).
RAMIREZ v. BARNET

Opinion of the Court

10

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. 
RAMIREZ v. BARNET

Opinion of the Court

11

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.
RAMIREZ v. BARNET

Opinion of the Court

12

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.
RAMIREZ v. BARNET

Opinion of the Court

13

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. 
RAMIREZ v. BARNET

Opinion of the Court

14

[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).

17The UCCJEA 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. 
RAMIREZ v. BARNET

Opinion of the Court

15

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.
RAMIREZ v. BARNET

Opinion of the Court

16

“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 
RAMIREZ v. BARNET

Opinion of the Court

17

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.
RAMIREZ v. BARNET

Opinion of the Court

18

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 nonresident 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. 
RAMIREZ v. BARNET

Opinion of the Court

19

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).

 

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).