IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ROBERTO ANTONETTI, Petitioner,

v.

THE HONORABLE TRACEY WESTERHAUSEN, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of 

Maricopa, Respondent Judge,

ALISON MERCEDES KLINGER, Real Party in Interest.

No. 1 CA-SA 22-0205 

Petition for Special Action from the Superior Court in Maricopa County

No. FC2020-006551

The Honorable Tracey Westerhausen, Judge

JURISDICTION ACCEPTED, RELIEF DENIED

COUNSEL

Ellsworth Family Law PC, Mesa

By Glenn D. Halterman

Counsel for Petitioner

Cantor Law Group PLLC, Phoenix

By Travis Owen

Counsel for Real Party in Interest

FILED 1-12-2023
ANTONETTI v. HON. WESTERHAUSEN/KLINGER

Opinion of the Court

2

OPINION

Judge Jennifer B. Campbell delivered the opinion of the Court, in which 

Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Petitioner Roberto Antonetti (Father) seeks special action 

relief, challenging a superior court order exercising subject matter 

jurisdiction under the Uniform Child Custody Jurisdiction and 

Enforcement Act (UCCJEA), A.R.S. §§ 25-1001 through -1067, over Alison 

Klinger’s (Mother) petition to establish paternity, legal decision-making, 

parenting time, and child support for the parties’ child. Because the totality 

of the circumstances reflects that the child permanently relocated to 

Arizona from his former home state, the superior court properly exercised

subject matter jurisdiction over the child custody case. Accordingly, we 

accept special action jurisdiction but deny relief.

BACKGROUND

¶2 Father, an Italian citizen, moved to Tunisia in 2007. Mother, 

an American citizen, moved to Tunisia in 2013. In December 2013, Father 

and Mother began a romantic relationship. In March 2018, their son was 

born in Tunisia, acquiring dual Italian and American citizenship through 

his parents. 

¶3 In February 2020, the parties traveled with the child to Italy 

for a vacation. While there, the Covid-19 pandemic struck the country, and 

by the end of the parties’ planned vacation, the Italian government had

imposed travel restrictions. Nonetheless, Father and Mother could have 

returned to Tunisia with the child at that time, but they decided to remain 

in Italy. Shortly thereafter, Tunisia closed its borders to international travel. 

¶4 On April 13, 2020, Mother flew with the child to the United 

States on a repatriation flight reserved only for United States citizens. 

Although he could not join them, Father drove Mother and the child to the 

Italian airport for their flight. 

¶5 Father returned to Tunisia on June 27, 2020, the first day it 

reopened its borders. Mother and the child remained in Arizona, where 

they have lived since April 13, 2020. 
ANTONETTI v. HON. WESTERHAUSEN/KLINGER

Opinion of the Court

3

¶6 On November 3, 2020, Mother petitioned the superior court 

to establish paternity, legal decision-making, parenting time, and child 

support. Although Mother asked the superior court to establish paternity, 

neither party contests that Father is the child’s biological father, and his 

parental status is reflected on the child’s birth certificate.1 As outlined in the 

petition, Mother alleged that she relocated to Arizona with the child to 

protect them from domestic violence perpetrated by Father. Mother 

requested sole legal decision-making authority for the child, sole physical 

custody with Father granted only supervised parenting time, and an order 

for child support under the Arizona Child Support Guidelines. 

¶7 On January 12, 2021, a process server affixed copies of 

Mother’s petition and a summons to appear on the front door of Father’s 

home in Tunisia. Two months later, Father moved the superior court to 

dismiss the petition for lack of both subject matter and personal jurisdiction. 

According to Father, the child was only “temporarily absent” from Tunisia, 

so Tunisia remained the child’s “home state” with jurisdictional priority. 

¶8 In response, Mother noted that before relocating to Arizona, 

“[t]he child had never lived anywhere consecutively longer than three (3) 

months.”2 Mother also argued that Arizona is the child’s home state 

because he “lived with her in Arizona for more than six consecutive months 

immediately prior to the commencement of the instant child custody 

proceeding.” 

¶9 After full briefing and an evidentiary hearing, the superior 

court denied Father’s motion to dismiss. As outlined in its ruling, the 

superior court reasoned that Mother’s: (1) decision to travel to the United 

States with the child on a repatriation flight, (2) failure to return to Tunisia 

when it reopened its borders to international travel, and (3) 

communications with Father expressing her “deep unhappiness” with their 

relationship and “obvious reluctance” to return to Tunisia “negate[d]” any 

claim of a temporary absence. The superior court also concluded that the 

child “had no home state” before relocating to Arizona and determined 

that, at this point, Arizona is the child’s home state. Accordingly, the 

1 To the extent Mother initially challenged Father’s paternity, she 

waived the claim by failing to pursue it.

2 Before traveling to Arizona in April 2020, Mother and the child 

visited the United States on three occasions: July 20, 2018 to September 15, 

2018 (58 days), April 22, 2019 to June 6, 2019 (46 days), and October 20, 2019 

to December 5, 2019 (47 days). 
ANTONETTI v. HON. WESTERHAUSEN/KLINGER

Opinion of the Court

4

superior court exercised jurisdiction over Mother’s petition under the 

UCCJEA. 

¶10 Father moved to amend the judgment, arguing Tunisia was 

the child’s home state before April 2020, and even if he had reason to 

recognize that the child’s relocation to Arizona was permanent based on his 

communications with Mother, six months had not transpired between 

those communications and the date she filed the petition, so Tunisia 

remained the child’s home state for purposes of determining jurisdiction.

The superior court denied Father’s motion to amend the judgment but 

stated it “was wrong when it concluded that the child had no home state” 

before relocating to Arizona, agreeing with Father that “Tunisia was the 

home state for the child” before April 2020.3 Father petitions this court for 

relief.

SPECIAL ACTION JURISDICTION

¶11 “Special action jurisdiction is discretionary, but appropriate 

when no ‘equally plain, speedy, and adequate remedy by appeal’ exists.” 

Gutierrez v. Fox, 242 Ariz. 259, 264, ¶ 12 (App. 2017) (quoting Ariz. R.P. Spec. 

Act. 1(a)). “We also have discretion to accept special action jurisdiction 

when statutes or procedural rules require immediate interpretation, and a 

petition presents a purely legal issue of first impression that is of statewide 

importance.” Id. at ¶ 13 (internal quotation and citation omitted). 

¶12 Here, the petition for special action raises an issue of first 

impression regarding the proper legal standard for evaluating whether a 

child is “temporarily absent” from a putative “home state” to determine

initial jurisdiction under the UCCJEA. Therefore, in the exercise of our 

discretion, we accept special action jurisdiction.

DISCUSSION

¶13 Father contends the superior court improperly exercised 

jurisdiction over this child custody matter in violation of the UCCJEA. “We 

review issues of law, including statutory interpretation and a court’s 

jurisdictional authority, de novo.” Holly C. v. Tohono O’odham Nation, 247 

Ariz. 495, 505, ¶ 26 (App. 2019). “To the extent a court’s jurisdictional 

3 As documented in exhibits attached to Mother’s response to the 

petition for special action, a Tunisian court subsequently dismissed Father’s 

parallel petition for custody filed in that country. Father does not contest 

the accuracy of these documents.
ANTONETTI v. HON. WESTERHAUSEN/KLINGER

Opinion of the Court

5

determination rests on disputed facts, however, we accept the court’s 

findings if reasonable evidence and inferences support them.” Id.

¶14 “[T]o prevent competing and conflicting custody orders by 

courts in different jurisdictions[,]” the UCCJEA vests “exclusive, continuing 

jurisdiction with the state that issues the initial child custody determination, 

subject to statutory exceptions.” Angel B. v. Vanessa J., 234 Ariz. 69, 72, ¶ 8 

(App. 2014); see also A.R.S. § 25-1005(A) (“A court of this state shall treat a 

foreign country as if it were a state of the United States for the purpose of 

applying [the UCCJEA].”).4 Under the UCCJEA, an Arizona court has 

jurisdictional priority for an initial child custody determination if Arizona 

“is the home state of the child on the date of the commencement of the 

proceeding[.]” A.R.S. § 25-1031(A)(1). A “home state” under the UCCJEA is 

“[t]he state in which a child lived with 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) (emphasis added). 

¶15 By the time Mother filed the petition on November 3, 2020, 

the child had continuously lived in Arizona for a period slightly longer than 

six months (since April 13, 2020). But Father argues that the child was only

temporarily absent from Tunisia during this time and, therefore, Arizona 

lacks jurisdiction to enter an initial custody determination. See Bata v. Konan, 

217 A.3d 774, 781 (N.J. Super. Ct. Ch. Div. 2019) (“[J]urisdiction cannot be 

established in a state where the time spent in that state is found to be a 

period of temporary absence from another state.”).

¶16 The UCCJEA does not define “temporarily absent,” see A.R.S. 

§ 25-1002, and no Arizona case has adopted a standard for assessing 

whether an absence qualifies as temporary for determining a child’s “home 

state.” See In re Marriage of Margain & Ruiz-Bours, 239 Ariz. 369, 378, ¶¶ 36–

38 (App. 2016) (rejecting a parent’s contention that a child’s 10-month 

absence from a state was temporary, noting the period in that case was 

“much longer” than the absences at issue in cases cited to the court); see also 

Duwyenie v. Moran, 220 Ariz. 501, 503, ¶ 9 (App. 2009) (concluding that 

Arizona was the child’s home state notwithstanding that the child “had not 

lived in Arizona for six months prior to [the commencement of the custody] 

4 Although Mother asserted that she refused to return to Tunisia, at 

least in part, because it offers few, if any, resources for victims of domestic 

violence, she never argued that the UCCJEA does not apply to this matter 

because the “child custody law of [Tunisia] violates fundamental principles 

of human rights.” See A.R.S. § 25-1005(C).
ANTONETTI v. HON. WESTERHAUSEN/KLINGER

Opinion of the Court

6

proceedings” because the child’s removal from the state was 

“unauthorized―and arguably criminal”). Absent any controlling authority, 

we consider the legal standards applied in other jurisdictions construing 

the UCCJEA.

¶17 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. Matter of Marriage of Schwartz & Battini, 410 P.3d 

319, 321, 325 (Or. Ct. App. 2017); see also Andrea Charlow, There’s No Place 

Like Home: Temporary Absences in the UCCJEA Home State, 28 J. Am. Acad. 

Matrim. L. 25, 30–36 (2015) (identifying the different legal tests that 

appellate courts have adopted to determine whether an absence is 

temporary under the UCCJEA).

¶18 The duration test focuses strictly on the length of the child’s 

absence. In other words, “short absences are treated as temporary, and 

longer ones are not.” Marriage of Schwartz & Battini, 410 P.3d at 325. While 

this approach offers the simplicity of a relatively bright-line standard, it 

fails to recognize that some short absences “may simply be the start of a 

permanent relocation.” Id. The intent test, by contrast, requires courts to 

consider the parents’ purpose for an absence to determine whether it 

should be deemed temporary. Id. Apart from the general difficulty of 

divining parties’ intent, this test is also “problematic” because the parties’ 

intentions may have differed from the outset or changed over time. Id.

¶19 Given the shortcomings of both the duration and the intent 

tests, we adopt the totality of the circumstances approach, which is the 

standard “most commonly used by other UCCJEA states.” Id. at 325. Under 

the totality of the circumstances test, we 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.” Id.

at 325. This test provides “greater flexibility” for a court to examine all the 

relevant facts, including how, when, and why “the child came to and 

remained in the state.” Bata, 217 A.3d at 781, 784.

¶20 With that standard in mind, we consider the evidence 

presented by the parties. At the evidentiary hearing, Father testified that: 

(1) he did not approve of Mother leaving Italy with the child on the 

repatriation flight; (2) the parties agreed before Mother and the child left 

Italy that she and the child would return to Tunisia as soon as international 
ANTONETTI v. HON. WESTERHAUSEN/KLINGER

Opinion of the Court

7

travel was reestablished; (3) Mother’s communications with him after 

arriving in Arizona “were consistent with her returning to Tunisia”; and (4) 

he did not realize Mother intended to permanently remain in Arizona with 

the child until he was served with a copy of her petition. To support his 

contention that the parties intended for the child’s presence in Arizona to 

be only temporary, Father pointed to several of Mother’s communications: 

WhatsApp Message from Mother to Father on March 30, 2020, 

concerning a return to Tunisia:

If and when they . . . lift the restrictions about 

quarantine in Tunisia, we’ll gladly come back and 

hopefully in the meantime we can find some way to 

communicate about our relationship and try to 

repair. 

Email from Mother to Father on April 23, 2020, concerning a 

banking matter:

It’s pointless for me to make the transfer to my 

personal account if I can’t wire it to my account in 

America so I’ll just wait until I get back to Tunisia[.] 

WhatsApp Message from Mother to Father on July 11, 2020, 

explaining that she was unable to travel due to a back injury:

I know you’re in a hurry for us to return but I can 

barely walk. 

¶21 But in response to questioning, Father admitted that Mother 

had “expressed a desire to stay in Arizona” and conveyed considerable 

reluctance about returning to Tunisia. He also acknowledged that he had 

been copied on the following letter that Mother emailed to her Arizona 

therapist on August 5, 2020:

[The child] and I did leave Italy for Phoenix on April 13th

however both [Father] and I were agreed and understood that 

we would be in America until the Coronavirus pandemic 

passed and it became safe and possible to travel again. 

. . . .

[Father] expressed sadness at our departure but agreed and 

understood that we needed to return to the US to have some 
ANTONETTI v. HON. WESTERHAUSEN/KLINGER

Opinion of the Court

8

distance from him due to the abuse [the child] and I were 

suffering within our relationship.

. . . . 

During our time in Phoenix, I have requested repeatedly that 

[Father] work constructively with me to attempt to repair our 

relationship or determine a go-forward plan. I have proposed 

various living situations, asked him to discuss my fears and 

issues related to our relationship and the poor living 

conditions in Tunisia. He has refused each time.

. . . .

Despite the four months of separation between us, I remain 

afraid of returning to Tunisia and [Father’s] home. I have a 

duty to protect [the child] from the certain consequences we 

will suffer at [Father’s] hand for protecting [the child] and 

myself[.] 

Despite reading the letter, Father testified that he believed Mother “could 

still come back.” 

¶22 Mother, in turn, testified that she told Father she could not 

continue their relationship in March 2020, while in Italy, and again in April 

2020, just before traveling to the United States. Stating she was afraid of

Father, Mother explained that she did not directly tell him she was leaving 

him, with no plan to return, and instead stated that their relationship was 

unhealthy and harming the child. Mother also testified that after she arrived 

in Arizona, she repeatedly told Father that she would not “consider” 

returning to Tunisia unless he made behavioral changes and could assure 

both her and the child’s safety. Although she acknowledged that she 

frequently tried to placate Father to avoid confrontations, Mother denied 

misleading him or hiding her intent to stay in Arizona with the child. 

¶23 Relying on Cook v. Arimitsu, 907 N.W.2d 233, 239 (Minn. Ct. 

App. 2018), Father asserts that the six-month period for determining a 

child’s “home state” does not begin to run until the parent in the original 

state “had reason to recognize the permanency of the out-of-state absence.”

(emphasis omitted) (citation omitted). Claiming he had no reason to believe 

the child’s absence from Tunisia was permanent until he was served with 

Mother’s petition, Father argues that the six-month period did not begin to 

run in this case until January 2021, two months after Mother commenced 

this custody proceeding. 
ANTONETTI v. HON. WESTERHAUSEN/KLINGER

Opinion of the Court

9

¶24 But this contention is belied by Father’s (1) admission that 

after arriving in the State, Mother “expressed a desire” to remain in Arizona 

and conveyed considerable reluctance when pressed about returning to 

Tunisia, and (2) emails imploring Mother to return to Tunisia, promising 

no “reproach await[ed]” her. In re Marriage of Pereault, 829 N.W.2d 192 

(Iowa Ct. App. 2013) (“[I]n determining whether an absence is a ‘temporary 

absence,’ we do not believe the significance of intent can or should be 

restricted to the intent existing at the time of leaving. If it were so restricted, 

then an absence that began with [the] intent to return would remain a 

‘temporary absence’ even long after a decision had been reached for the 

child to permanently relocate.”). Although Father argues that “an 

expression of a desire to remain in Arizona is very different from a 

declaration [of intent] to remain in Arizona,” Mother testified, 

unequivocally, that she told Father, both before leaving Italy and after 

arriving in Arizona, that she believed it was unsafe for her and the child to 

return to Tunisia. Considering Mother’s uncontroverted testimony, Father 

essentially argues that the six-month period for determining the child’s 

home state could not begin until he realized he could not persuade Mother 

to return to Tunisia and abandoned hope of reconciliation and 

reunification. But that is not the legal standard espoused under Cook; rather, 

the question is when Father had reason to recognize the child’s relocation 

was permanent, not when he resigned himself to that reality.

¶25 Recognizing that the superior court is in the best position to

determine the credibility of witnesses, resolve conflicts in the evidence, and 

weigh the evidence accordingly, it was not error for the court to conclude 

that Father had reason to believe Mother was permanently relocating to 

Arizona with the child when they left Italy. See Goats v. A.J. Bayless Mkts., 

Inc., 14 Ariz. App. 166, 171 (1971) (noting the superior court “is in the best 

position to judge the credibility of the witnesses, the weight of evidence, 

and also the reasonable inferences to be drawn therefrom”). Moreover, 

considering the totality of the circumstances, reasonable evidence supports 

the superior court’s finding that the child’s absence from Tunisia was not 

temporary for purposes of the UCCJEA. As such, and given the length of 

the child’s continuous presence in the State before Mother filed her petition, 

the superior court properly found that Arizona is the child’s home state for 

purposes of subject matter jurisdiction under the UCCJEA.5

5 Given our disposition, we need not address Mother’s contention that 

the superior court may now exercise jurisdiction under A.R.S. § 25-1031 

based on Tunisia’s dismissal of Father’s petition for custody. 
ANTONETTI v. HON. WESTERHAUSEN/KLINGER

Opinion of the Court

10

CONCLUSION

¶26 For the foregoing reasons, we accept jurisdiction but deny 

relief. Both parties request an award of their attorney’s fees under A.R.S. § 

25-324, which authorizes an award of attorney’s fees after considering both 

parties’ financial resources and the reasonableness of their positions 

throughout the proceedings. We have no information concerning the 

parties’ respective financial resources. We find, however, Father’s 

contention that he had no reason to believe the child’s relocation to Arizona 

was permanent until he was served with Mother’s custody petition patently 

unreasonable. Moreover, his failure to disclose the dismissal of his custody 

petition in the Tunisian court reflects a lack of candor. Accordingly, in our 

discretion, we award Mother her reasonable attorney’s fees and taxable 

costs upon compliance with ARCAP 21.