IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

MICHELE GUTIERREZ, Petitioner, 

v.

THE HONORABLE DEWAIN D. FOX, Judge of the SUPERIOR COURT 

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

Respondent Judge, 

ROBERT KIVLIGHN, II, Real Party in Interest. 

No. 1 CA-SA 17-0047 

 

Petition for Special Action from the Superior Court in Maricopa County 

No. FC2016-009529 

The Honorable Dewain D. Fox, Judge 

JURISDICTION ACCEPTED; RELIEF DENIED 

COUNSEL 

Horne Slaton, PLLC, Scottsdale 

By Sandra Slaton, Kristin M. Roebuck 

Counsel for Petitioner 

Cantor Law Group, PLLC, Phoenix 

By Bryan Blehm 

The Murray Law Offices, Scottsdale 

By Stanley D. Murray 

Co-Counsel for Real Party in Interest
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

2 

OPINION 

Judge Paul J. McMurdie delivered the opinion of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined. 

M c M U R D I E, Judge: 

¶1 Michele Gutierrez (“Mother”) seeks special action relief, 

challenging the superior court’s temporary orders awarding joint legal 

decision-making authority to both parents, and parenting time with Robert 

Kivlighn II (“Father”) to occur in Arizona. Mother argues the temporary 

orders are invalid because (1) Arizona is not the minor child’s home state, 

(2) the superior court did not make statutory findings pursuant to Arizona 

Revised Statutes (“A.R.S.”) section 25-403, and (3) as Father had not 

established paternity by the time she moved, she did not have to obtain 

Father’s consent to move with the child to Wisconsin.1

¶2 We previously issued an order accepting jurisdiction, 

denying relief, and stating a written decision would follow. This is that 

decision. We hold that (1) under A.R.S. § 25-1002(7)(b) when a child of six 

months of age or younger has lived in Arizona “from birth with a parent,” 

and the proceeding is commenced by a parent still living in Arizona within 

six months of the child leaving Arizona, Arizona remains the home state of 

the child; (2) statutory findings under A.R.S. § 25-403 are not mandatory 

when determining temporary orders under A.R.S § 25-404; and (3) a 

voluntary acknowledgement of paternity has the same effect as a judgment, 

thereby requiring Mother to obtain Father’s consent or a court order to 

permanently move the child out of Arizona. 

FACTS AND PROCEDURAL BACKGROUND 

¶3 M.K. was born outside of marriage in Arizona on July 21, 

2016. M.K.’s birth was registered with the Arizona Department of Health 

Services (“Department”) on July 31, 2016, and the Department issued a 

“certificate of live birth” on December 5, 2016. The certificate lists Kivlighn 

as the father. Although Mother and Father have never married, they and 

 

1 We cite to the current version of applicable statutes and rules when 

no revision material to this case has occurred. 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

3 

M.K. lived in Arizona together until September 29, 2016, when Mother left 

Arizona with M.K. after a disagreement with Father. Mother arrived in 

Wisconsin on October 2, 2016. 

¶4 Father initially believed Mother and M.K. had left Arizona to 

visit Mother’s family in Wisconsin and would return to Arizona. However, 

Father received a text message from Mother on November 23, 2016, 

informing him that she had decided to permanently relocate to Wisconsin 

with M.K.2 Father traveled to Wisconsin to try to convince Mother to return 

to Arizona, but was unsuccessful. 

¶5 Immediately after he returned from Wisconsin, on November 

28, 2016, Father petitioned to establish his paternity, legal decision-making, 

parenting time and child support (“the petition”), and moved for 

temporary orders. M.K. was four months and nine days old when Father 

filed the petition. 

¶6 On December 2, 2016, Mother filed a petition to establish 

paternity, legal decision-making (custody) and parenting time in 

Wisconsin, and verified under oath that Father was M.K.’s biological father. 

The Arizona and Wisconsin courts conferred and agreed the Arizona court 

would decide which state had jurisdiction pursuant to the Uniform Child 

Custody Jurisdiction and Enforcement Act (“UCCJEA”). After the parties 

briefed the jurisdictional issue in December 2016, the superior court issued 

an order in which it determined Arizona had “exclusive home state 

jurisdiction to make the initial child custody order,” and that Arizona was 

“not an inconvenient forum” pursuant to A.R.S. § 25-1037(B) (“the 

jurisdictional order”). 

¶7 On February 10, 2017, the superior court conducted an 

evidentiary hearing on Father’s motion for temporary orders regarding 

legal decision-making, parenting time, and child support. Father testified 

he cared for M.K., held and nurtured him as much as he could, utilizing the 

parenting skills he had learned as the oldest of seven siblings. Father sought 

to establish an equal parenting plan, as he wanted to actively participate in 

 

2 Mother testified that Father knew she was moving to Wisconsin 

permanently when she left in September because she “packed [her] car with 

everything [she] needed” and told him she missed her family and needed 

their support. 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

4 

M.K.’s up-bringing, feed him from a bottle, change his diapers, and teach 

him as he had with his six younger siblings. 

¶8 During the hearing, Father denied Mother’s allegation that he 

had a substance abuse problem, although he admitted that he previously 

legally used alcohol and marijuana with Mother in Colorado. Father 

provided the court with drug test results, showing negative results for 

alcohol and a variety of drugs and other substances. Father further denied 

he had any criminal history, and stated that he had never been cited for 

driving under the influence. Father testified he had not experienced any 

employment problems or been terminated from a job because of drug use. 

Father denied suffering from suicidal tendencies or mental health 

problems. Father also denied all of Mother’s allegations of physical abuse, 

although he admitted to having “called her names” and being aggressive 

and angry at times. Father’s sister testified and opined Mother restricted 

Father’s access to M.K. before she left for Wisconsin. 

¶9 Mother testified Father had a substance abuse problem 

because he drank daily and smoked marijuana. Mother asserted Father was 

rarely involved in caring for M.K. Mother further testified she has extensive 

family support in Wisconsin, where she grew up, and asserted that neither 

Father nor his family had helped with M.K. in any significant way. She 

denied having restricted Father’s access to M.K., noting she had provided 

Father with photos, told Father he could “FaceTime” with M.K., and “never 

told him he could not see his child.” Mother admitted, however, she would

not allow Father to be with M.K. for an extended amount of time, and 

confirmed she did not consider Father a primary caregiver. 

¶10 At the conclusion of the temporary orders hearing on 

February 10, 2017, the superior court entered an interim order requiring 

Father to submit to a hair follicle test.3 The court declined to require 

supervised parenting time. The court granted Father daily parenting time 

of two three-hour increments until February 15, at which point Mother 

could return to Wisconsin with M.K. 

 

3 The test results filed with the superior court on February 15, 2017, 

were negative for any illegal substances. While the parties did not submit 

the results to this court for review, we have taken judicial notice of them. 

State v. McGuire, 124 Ariz. 64, 66 (App. 1978) (“An appellate court can take 

judicial notice of any matter of which the trial court may take judicial notice, 

even if the trial court was never asked to do so.”). 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

5 

¶11 On February 15, 2017, the superior court filed temporary 

orders, which included a section titled “Best Interest Findings: A.R.S. 

§ 25-403.” In its order, the court found Father’s paternity “sufficiently 

established,” awarded Father parenting time to take place in Arizona, and 

awarded Father and Mother joint legal decision-making authority. Mother 

then filed this special action seeking review of the superior court’s 

temporary orders. 

SPECIAL ACTION JURISDICTION 

¶12 Special action jurisdiction is discretionary, but appropriate 

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

Ariz. R.P. Spec. Act. 1(a). Because temporary orders under A.R.S. § 25-404 

are “merely preparatory to a later proceeding” that might affect the 

judgment or its enforcement, they are not appealable; leaving a party with 

no adequate remedy by appeal. Villares v. Pineda, 217 Ariz. 623, 624–25, 

¶ 10–11 (App. 2008); see Ariz. R.P. Spec. Act. 1(a). But cf. A.R.S. § 25-1064 

(an appeal may be taken from a final order in a proceeding enforcing the 

UCCJEA). We therefore have discretion to accept special action jurisdiction 

over temporary orders. Villares, 217 Ariz. at 625, ¶ 11; see DePasquale v. 

Super. Ct. In and For County of Maricopa, 181 Ariz. 333, 336–37 (App. 1995) 

(the proper challenge to a temporary order is by special action). 

¶13 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.” Escalanti v. Super. Ct. In and For County of Maricopa,

165 Ariz. 385, 386 (App. 1990); State ex rel. Thomas v. Duncan, 216 Ariz. 260, 

262, ¶ 5 (App. 2007); see Ariz. R.P. Spec. Act. 8(a). 

¶14 The petition for special action in this case raises an issue of 

first impression regarding the application of jurisdiction of A.R.S. 

§ 25-1031(A)(1) for a child under six months of age as defined in A.R.S. 

§ 25-1002(7)(b). Also, there is no controlling authority whether the superior 

court must make statutory findings of fact pursuant to A.R.S. § 25-403 from 

a § 25-404 temporary order hearing in which parenting time and 

decision-making authority are contested. Finally, whether establishment of 

paternity by a voluntary acknowledgement pursuant to A.R.S. § 25-812(D) 

has the same effect as a judgment, is an issue which requires our immediate 

interpretation. 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

6 

¶15 Thus, in the exercise of our discretion, we accept special 

action jurisdiction pursuant to A.R.S. § 12-120.21(A)(4) and Arizona Rule of 

Procedure for Special Action 1(a). 

DISCUSSION 

A. Arizona has “Home State” Jurisdiction of the Child. 

¶16 Mother contends the superior court’s temporary orders are 

invalid because Arizona is not M.K.’s “home state” pursuant to the 

UCCJEA, and therefore the superior court did not have jurisdiction to enter 

them. Mother argues a minor child less than six months old, who has not 

lived exclusively in one state, has no “home state” pursuant to UCCJEA. 

Consequently, Mother argues the superior court erred by finding M.K. had 

a more substantial connection to Arizona than to Wisconsin. 

¶17 Arizona and Wisconsin have adopted nearly identical 

versions of the UCCJEA. See A.R.S. §§ 25–1001 to –1067; Wis. Stat. § 822.01–

.47. We review de novo whether a court has subject matter jurisdiction under 

the UCCJEA. Mangan v. Mangan, 227 Ariz. 346, 350, ¶ 16 (App. 2011); see 

Willie G. v. ADES., 211 Ariz. 231, 233, ¶ 8 (App. 2005) (this Court reviews de 

novo matters of statutory interpretation and mixed questions of fact and 

law). 

¶18 Under the UCCJEA, a state with home state jurisdiction has a 

jurisdictional priority. See A.R.S. § 25-1031(A)(1−4) (paragraphs 2, 3, or 4 

apply only if a court of another state does not have jurisdiction under 

paragraph 1, which defines parameters of home state jurisdiction, or if a 

home state court abdicates its jurisdiction to a more appropriate state). 

“[W]hen there is a statutory conflict in the application of home state 

jurisdiction, the conflict should be resolved to strengthen (rather than 

dilute) the certainty of home state jurisdiction.” Welch–Doden v. Roberts, 202 

Ariz. 201, 208, ¶ 32 (App. 2002). The UCCJEA revised the original Uniform 

Child Custody Jurisdiction Act, which was adopted in Arizona in 1978 to 

establish “uniformity and the need to avoid disputes between competing 

jurisdictions,” but produced inconsistencies in interpretation among state 

courts. Id. at ¶¶ 24, 29. The UCCJEA prioritized home state jurisdiction over 

other bases for jurisdiction and “completely eliminate[d] a determination 

of ‘best interests’ of a child from the jurisdictional inquiry.” Id. at ¶¶ 30−31. 

But cf. In re Ramirez v. Barnet, 241 Ariz. 145, 147–48, 152, ¶¶ 13, 27 (App. 

2016) (if a child has no home state, the alternative ground for jurisdiction 

will apply, and the Parental Kidnapping Prevention Act, unlike the 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

7 

UCCJEA, will require the best interests of the child be determined to give 

full faith and credit to custody orders between states). 

¶19 In Arizona, the superior court has jurisdiction to make an 

initial child custody determination if “[Arizona] . . . was the home state of 

the child within six months before the commencement of the proceeding and 

the child is absent from [Arizona] but a parent or person acting as a parent 

continues to live in [Arizona].” A.R.S. § 25-1031(A)(1) (emphasis added). 

For a child under the age of six months, “home state” is “the state in which 

the child lived from birth with a parent or person acting as a parent, including 

any period during which that person is temporarily absent from that state.” 

A.R.S. § 25-1002(7)(b) (emphasis added). After an initial legal 

decision-making and parenting time determination has been made, 

continuing jurisdiction is governed by “a separate (but intertwined) 

statutory scheme” under A.R.S. § 25-1032(A). Welch-Doden, 202 Ariz. at 204, 

¶ 14. 

¶20 The court in Welch-Doden reconciled a conflict between 

§ 25-1031(A)(1) and the definition of “home state” under § 25-1002(7)(a) 

(limits home state jurisdiction only to states where a child lived for at least 

six consecutive months immediately before the proceeding was initiated) 

by extending the six-consecutive-months long requirement of 

§ 25-1002(7)(a) to any time “within six months before the commencement 

of the [child custody] proceeding.” Welch-Doden, 202 Ariz. at 208−09, ¶ 33 

(quoting A.R.S. § 25-1031(A)(1)). The court reasoned that “[g]iven the 

fundamental purpose of the UCCJEA to establish the certainty of home 

state jurisdiction, it is clear to us that § 25-1031(A)(1) acts to enlarge and 

modify the definition of home state under § 25-1002(7)(a).” Id. (emphasis 

added). The drafters intended for home state jurisdiction to have priority 

and this extended home state jurisdiction promotes that intent. Id.

¶21 No Arizona precedent has applied the home state jurisdiction 

of § 25-1031(A)(1) to the definition of home state of a child six months or 

younger under § 25-1002(7)(b). Although this court reconciled the extended 

home state jurisdiction with § 25-1002(7)(a), “there is no indication the 

legislature intended ‘the home state . . . within six months,’ to apply only to 

children six months of age or older.” In re Burk, 252 S.W.3d 736, 741 (Tex. 

App. 2008). Like the Texas Court of Appeals, we have found nothing in the 

UCCJEA or Arizona legislative history indicating any contrary legislative 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

8 

intent and find the interpretation from Texas persuasive.4 This 

interpretation is consistent with other UCCJEA jurisdictions. See, e.g., 

Meyeres v. Meyeres, 196 P.3d 604, 607 (Utah Ct. App. 2008) (determining 

Utah was home state of a child who was born in Utah but moved to Kansas 

at six weeks of age); Baker v. Tunney, 201 So. 3d 1235, 1236–39 (Fla. Dist. Ct. 

App. 2016) (Florida was the home state, pursuant to “the plain language of 

the statute,” because a child born in Florida lived in Florida with both 

parents “until the mother relocated to New York when the child was less 

than two weeks old”); Fleckles v. Diamond, 35 N.E.3d 176, 188, ¶ 52 (Ill. Ct. 

App. 2015) (Colorado, not Illinois, was the child’s home state upon birth, 

because the UCCJEA’s “home state” is the birth state for a child less than 

six months old); Gray v. Gray, 139 So.3d 802, 806 (Ala. Civ. App. 2013) 

(Alabama had jurisdiction regarding the divorce but not custody issues as 

Michigan, not Alabama, was child’s “home state” because child was born 

in Michigan and had never lived in Alabama.). 

¶22 Here, the facts closely resemble the facts in the Texas case and 

the other cited cases. M.K. was born in Arizona. M.K. lived in Arizona after 

his birth for approximately two months. Then, Mother moved M.K. to 

Wisconsin, where she and M.K. lived for approximately two months before 

Father filed the petition in Arizona. Father lived in Arizona when M.K. was 

born and has continued to live in Arizona. 

¶23 Section 25-1031(A)(1) provides that Arizona has jurisdiction 

to make an initial child custody determination if it was the home state 

within six months before commencement of the proceeding, and the child 

is absent from Arizona but a parent continues to live in Arizona. Father filed 

the Arizona proceeding on November 28, 2016. M.K. had lived in Arizona 

from birth to September 29, 2016, when Mother moved with him to 

Wisconsin. September 29, 2016, falls within the six months preceding the 

filing on November 28, 2016. Accordingly, Arizona was the home state 

 

4 Texas has adopted the UCCJEA. See Waltenburg v. Waltenburg, 270 

S.W.3d 308, 315 (Tex. App. 2008). The Texas definition of “home state” 

reads: “In the case of a child less than six months of age, the term means the 

state in which the child lived from birth with a parent or a person acting as 

a parent. A period of temporary absence of a parent or a person acting as a 

parent is part of the period.” Tex. Fam. Code Ann. § 152.102 (West 2015); 

accord A.R.S. § 25-1002(7)(b) (for a child less than six months old, “home 

state” is “the state in which the child lived from birth with a parent or 

person acting as a parent, including any period during which that person 

is temporarily absent from that state.”). 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

9 

within six months before the Arizona proceeding commenced, and Arizona 

has jurisdiction under A.R.S. § 25-1031(A)(1). Mother’s argument that M.K. 

did not live solely in the state of birth, and thus has no home state, fails. 

¶24 Mother further argues the superior court erred by finding 

M.K. had a more substantial connection to Arizona than to Wisconsin; she 

contends the court should have declined to exercise jurisdiction as an 

inconvenient forum pursuant to A.R.S. § 25-1037(A) and (B). 

¶25 Under the UCCJEA, once the superior court determines it has 

jurisdiction, it may nevertheless decline to exercise its jurisdiction at any 

time if it determines that “it is an inconvenient forum under the 

circumstances and that a court of another state is a more appropriate 

forum.” A.R.S. § 25-1037(A). Here, the superior court provided detailed 

analysis of why Arizona is not an inconvenient forum, analyzing all the 

§ 25-1037(B)(1–8) factors. Upon review of the record de novo, we find 

substantial evidence supporting the superior court’s analysis and 

conclusion. Welch–Doden, 202 Ariz. at 210–11, ¶¶ 43–44. 

¶26 The superior court did not err by finding Arizona is M.K.’s 

home state and that it has exclusive jurisdiction in compliance with 

§§ 25-1031(A)(1), (B), and -1037(B). 

B. Statutory Findings Under A.R.S. § 25-403 Are Not 

Mandatory When Determining Temporary Orders Under 

A.R.S. § 25-404. 

¶27 Mother argues the superior court’s temporary orders are 

invalid because the court failed to make specific findings pursuant to A.R.S. 

§ 25-403(B).5 Mother contends the plain language of subsection (B) extends 

the specific findings requirement to all contested custody orders, given the 

best interests of the child is the primary consideration in awarding legal 

decision-making and parenting time. See Hays v. Gama, 205 Ariz. 99, 102, 

¶ 18 (2003); A.R.S. § 25-403(A). 

¶28 We review the superior court’s interpretation of statutes and 

procedural rules de novo. Mara M. v. ADES, 201 Ariz. 503, 505, ¶ 15 (App. 

 

5 Both Mother and Father analyzed the factors of § 25-403(A) in their 

pretrial statements filed prior to the temporary orders hearing. Although 

the superior court made detailed findings of fact regarding many of the 

factors identified in § 25-403, see infra ¶ 47, it declined “to make the type of 

detailed findings that would accompany final orders.” 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

10 

2002). We start by giving effect to the intent of the legislature. See Pima 

County v. Pima County Law Enf’t Merit Sys. Council, 211 Ariz. 224, 227, ¶ 13 

(2005). “[W]e interpret court rules according to the principles of statutory 

construction.” Potter v. Vanderpool, 225 Ariz. 495, 498, ¶ 8 (App. 2010). If the 

language of a statute or rule is unambiguous, “we apply it as written.” 

Roberto F. v. DCS, 237 Ariz. 440, 441, ¶ 6 (2015). Only if the language is 

unclear do “we apply secondary principles of construction, such as 

examining the rule’s context, its relationship to related rules, its 

background, and the consequences of differing interpretations.” Id. “We 

seek to harmonize and attain consistency among related statutory 

provisions in the context of the overall statutory scheme.” Andrew R. v. 

ADES, 223 Ariz. 453, 458, ¶ 16 (App. 2010). 

¶29 The Arizona Constitution vests our supreme court with the 

“[p]ower to make rules relative to all procedural matters in any court.” 

Ariz. Const. art. 6, § 5(5); Seisinger v. Siebel, 220 Ariz. 85, 88, ¶ 7 (2009). The 

Rules of Family Law Procedure “govern the procedure in the Superior 

Court of Arizona in all family law cases, including paternity, and all other 

matters arising out of Title 25, Arizona Revised Statutes (A.R.S.).” Ariz. R. 

Fam. Law P. 1. 

¶30 Rule 82 of the Arizona Rule of Family Law Procedure reads 

that “[f]indings of fact and conclusions of law are unnecessary on decisions 

of motions under Rules 32 and 79 or any other motion, except as provided in 

paragraph C.” Ariz. R. Fam. Law P. 82(A) (emphasis added). The 

“paragraph C” exception does not apply here; therefore, the rule’s directive 

that findings of fact and conclusions of law are not necessary for motions 

applies to motions for temporary orders under Rule 47. 

¶31 Section 25-404(A) also addresses temporary orders. Under 

that statute, once a party has filed a motion for a temporary order supported 

by “pleadings as provided in § 25-411,” “[t]he court may award temporary 

legal decision-making and parenting time under the standards of § 25-403 

after a hearing, or, if there is no objection, solely on the basis of the 

pleadings.” Section 25-404 does not, however, direct the superior court to 

make detailed § 25-403 findings. 

¶32 Mother argues statutory findings are required because 

temporary orders resolve contested issues, and § 25-403(B), therefore, 

extends the requirement to make specific findings. Mother also argues the 

court’s “original” determinations pursuant to § 25-403(A) include 

temporary orders. The arguments place §§ 25-403 and -404 in conflict. 

However, “where two statutes deal with the same subject, the more specific 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

11 

statute controls.” Pima County v. Heinfeld, 134 Ariz. 133, 134–35 (1982). Here, 

both §§ -403 and -404 concern determinations of legal decision-making and 

parenting time. The language “either originally or on petition for 

modification” in § 25-403(A) includes a spectrum of circumstances 

presented by various types of petitions and is a general statute. By contrast, 

§ 25-404 only applies to temporary orders, and is triggered only after a 

party to an “originally” filed petition files a motion for a temporary order. 

Section 25-404 is the more specific statute, applicable only under certain 

conditions, and its discretionary provision controls the content of 

temporary orders over the mandatory requirement of § 25-403 to “make 

specific findings on the record about all relevant factors.” A.R.S. 

§ 25-403(B). 

¶33 Additionally, “[w]hen the legislature has specifically 

included a term in some places within a statute and excluded it in other 

places, courts will not read that term into the sections from which it was 

excluded.” State v. Gonzales, 206 Ariz. 469, 471, ¶ 11 (App. 2003). Here, the 

term “shall” is not included in § 25-404(A), although it is included in 

sections 25-403(A) and (B). We will not read “shall” into § 25-404, when its 

drafters omitted it. 

¶34 Moreover, the requirement in § 25–403(B) that the superior 

court make specific findings on the record about all relevant factors and the 

court’s reasoning “exists not only to aid an appellant and the reviewing 

court, but also for a more compelling reason—that of aiding all parties and 

the family court in determining the best interests of the child or children 

both currently and in the future.” Reid, 222 Ariz. at 209, ¶ 18. Given the 

transitory nature of temporary orders, requiring detailed findings 

regarding all aspects of a pending case is not warranted. The temporary 

order is not appealable, so it only marginally, at best, helps a “reviewing 

court,” and a temporary order “[d]oes not prejudice the rights of the parties 

or of any child that are to be adjudicated at the subsequent hearings in the 

proceeding,” A.R.S. § 25-315(F)(1), and “[t]erminates when the final decree 

is entered . . . .” A.R.S. § 25-315(F)(4); see Ariz. R. Fam. P. Rule 47(M) 

(“Temporary orders become ineffective and unenforceable upon 

termination of an action either by dismissal or following entry of a final 

decree . . . .“). Given the extraordinary number of motions for temporary 

orders handled by the superior courts, and the minimal utility of detailed 

findings in such orders, we decline to mandate that § 25-403 findings be 

made in every temporary order. 

¶35 For these reasons, we hold that superior courts are not 

required to make findings addressing the A.R.S. § 25-403 factors when 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

12 

entering temporary orders regarding legal decision-making and parenting 

time pursuant to A.R.S. § 25-404. See Ariz. R. Fam. P. 82 (findings are 

“unnecessary” in resolving motions). Although A.R.S. § 25-404 authorizes 

a superior court to award legal decision-making and parenting time under 

the standards of § 25-403, it does not require the court to make findings on 

those factors. Thus, the superior court did not commit reversible error by 

not making all the findings under § 25-403. 

C. Paternity is Voluntarily Established by a Registered 

Acknowledgement of Paternity Under A.R.S. § 25-812. 

¶36 Mother argues paternity was not established by the time she 

left for Wisconsin, and therefore she was not required to obtain Father’s 

“consent” to remove M.K. from Arizona pursuant to A.R.S. § 13-1302(B). 

Mother contends M.K.’s birth certificate was not signed by Father and 

Father did not file a petition to establish paternity until Mother already 

resided in Wisconsin with M.K. Therefore, Mother argues the court erred 

by considering Father’s lack of consent to Mother’s relocation when 

rejecting a long-distance parenting plan. We disagree with both the premise 

and conclusion of Mother’s argument.

¶37 Parents of a child born out of wedlock may voluntarily 

establish paternity by filing a notarized or witnessed statement with the 

Department of Economic Security or the Department that contains the 

Social Security numbers of both parents, and is “signed by both parents 

acknowledging paternity or two separate substantially similar notarized or 

witnessed statements acknowledging paternity.” A.R.S. § 25-812(A)(1). 

“Once signed, a purported voluntary acknowledgement of paternity is 

presumed valid and binding until proven otherwise.” Andrew R. v. ADES, 

223 Ariz. 453, 457, ¶ 17 (App. 2010) (citing Stephenson v. Nastro, 192 Ariz. 

475, 483, ¶ 26 (App. 1998). 

¶38 “[T]he father’s name shall be stated on a birth certificate . . . [i]f 

a mother and father who are not married to each other at the time of birth 

and were not married to each other in the ten months before the birth 

voluntarily acknowledge paternity pursuant to § 25-812 . . . .” A.R.S. 

§ 36-334(C)(2) (emphasis added); see A.R.S. § 36-333(B)(1−3) (to register a 

birth certificate from a birth that occurred in a hospital, a chief 

administrative officer of the hospital obtains information, fills out the birth 

certificate, and “submit[s] the birth certificate for registration to . . . the state 

registrar.”). “A voluntary acknowledgment of paternity . . . is a 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

13 

determination of paternity and has the same force and effect as a superior court 

judgment.”6 A.R.S. § 25-812(D) (emphasis added). 

¶39 Here, Mother and Father were never married to each other. 

But because Father’s name appears on the birth certificate registered with 

and issued by the Department, Father’s paternity was established with the 

“force and effect” of a superior court judgment. See A.R.S. 

§§ 25-812(A)(1), -812(D), -818(A), 36-334(C)(2). Mother could have 

challenged Father’s acknowledgement of paternity and rescinded it within 

“[s]ixty days after the last signature [wa]s affixed to the notarized 

acknowledgment of paternity that is filed with the department of economic 

security, [or] the department of health services” by filing a written copy of 

the rescission with the Department. A.R.S. § 25-812(H)(1), (I). The record, 

however, does not indicate Mother has ever attempted to rescind or 

challenge the issued birth certificate, timely or otherwise. 

¶40 Mother further argues that because the actual birth certificate 

was not signed by Father, his paternity was not established pursuant to 

A.R.S. § 25-814(A)(3) (“A man is presumed to be the father of the child if . . 

. [a] birth certificate is signed by the mother and father of a child born out 

of wedlock.”). However, § 25-814 specifies mere presumptions of paternity 

to be used if paternity is contested, and is thus subordinate to § 25-812, 

which governs the voluntary establishment of paternity for “a parent of a 

child born out of wedlock.” Moreover, in 2003 the legislature amended 

A.R.S. § 25-812, and specifically deleted the requirement that a father sign 

a birth certificate to voluntarily establish paternity. 2003 Ariz. Sess. Laws, 

ch. 230, § 3. Under § 25-812(A), only the voluntary acknowledgment of 

 

6 Under A.R.S. § 36-334(C)(2), Father’s name could only be registered 

on the birth certificate if Mother and Father signed a voluntary 

acknowledgment of paternity. Mother did not address Father’s voluntary 

acknowledgement of paternity when she argued that Father’s fundamental 

right to parent M.K. did not vest before she left for Wisconsin because 

Father was not married to her and did not act to establish paternity before 

her departure. See Pima County Juv. Severance Action No. S-114487, 179 Ariz. 

86, 96 (1994). Mother relies on an out of state case, in which a Massachusetts 

trial court was found to have lacked authority to force an unmarried mother 

and minor child to return from New York because mother was the child’s 

only legal parent at the time they moved from Massachusetts to New York. 

See Smith v. McDonald, 941 N.E.2d 1, 9 (Mass. 2010). We do not find Smith

persuasive. Father was M.K.’s legal parent at the time Mother moved from 

Arizona to Wisconsin. 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

14 

paternity or an agreed upon genetic test may be used to voluntarily 

establish paternity for a child born out of wedlock. 

D. Mother Needed Father’s Consent or a Court Order to Move 

M.K. to Wisconsin.

¶41 Mother argues that as a parent without a specific court order 

designating parental decision-making, she was not obligated to obtain 

Father’s consent before moving with M.K. to Wisconsin. We disagree. 

¶42 “A father has a right to co-equal custody of his child but not 

exclusive custody absent a court order to that effect.” Maricopa County Juv. 

Action No. JD-4974, 163 Ariz. 60, 62 (App. 1990). Our legislature has 

declared, as Arizona public policy, that it is in the best interests of a child, 

absent evidence to the contrary, “[t]o have substantial, frequent, 

meaningful and continuing parenting time with both parents” and “[t]o 

have both parents participate in decision-making about the child.” A.R.S. 

§ 25-103(B)(1), (2). This policy is also reflected in A.R.S. § 25-808(A), when 

upon the filing of a petition for legal decision-making and parenting time 

with an attached birth certificate or an acknowledgment of paternity, the 

court issues a preliminary injunction which, among other orders, prohibits 

“removing any natural or adopted child of the parties . . . from the 

jurisdiction of the court without the prior written consent of the [other] 

part[y] or the permission of the court.” A.R.S. § 25-808(B)(1)(b). 

¶43 Likewise, a parent commits “custodial interference” if he or 

she knowingly “[b]efore the entry of a court order determining custodial 

rights, takes, entices or withholds any child from the other parent denying 

that parent access to any child.” A.R.S. § 13-1302(A)(2); State v. Donahue, 140 

Ariz. 55, 57 (App. 1984) (father did not have the right to custody of the child 

to the exclusion of mother in the absence of a court order to that effect). Our 

supreme court stated the purpose of the custodial interference statute was 

“to stem the flood of child-stealing acts often attendant to domestic 

relations cases.” State v. McLaughlin, 125 Ariz. 505, 507 (1980); Donahue, 140 

Ariz. at 57. A parent’s removal of a child from Arizona to another state, 

without consent of the other parent or a court order, constitutes 

withholding the child from the other parent. State v. Wood, 198 Ariz. 275, 

277–79, ¶¶ 10–13 (App. 2000) (holding that § 13-1302(A)(2) applies to any 

parent who interferes with the other parent’s right of access to and custody 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

15 

of a child by taking or withholding that child from the other parent).7 Given 

the public policy of this state, we disagree with Mother that she could 

permanently remove the child from Arizona without either obtaining 

permission from Father or a court order. 

¶44 Mother further argues this was not a relocation case and the 

superior court erred by considering relocation factors under A.R.S. § 25-408. 

We agree that this is not a relocation case under A.R.S. § 25-408. Buencamino 

v. Noftsinger, 223 Ariz. 162, 163, ¶ 8 (App. 2009) (two prerequisites need to 

be met before applying § 25-408: (1) a written agreement or court order 

providing for custody or parenting time by both parents, and (2) both 

parents residing in Arizona). Although this is not a relocation case under 

§ 25-408, the superior court may consider § 25-408 factors in resolving a 

long-distance parenting issue. Buencamino, 223 Ariz. at 163, n. 3 (“Even 

when the § 25-408 relocation provisions are not required to be considered, 

family court judges may, of course, choose in their discretion to consider 

some or all of the factors listed in § 25–408(I) in appropriate cases.”) 

¶45 Father was M.K.’s “legal parent”8 from the date he signed the 

acknowledgement of paternity. See A.R.S. §§ 25-812(A)(1), (D), -818(A). 

Thus, Mother was required to secure Father’s agreement or a court order to 

permanently remove M.K. to Wisconsin. State v. Wood, 198 Ariz. at 279, ¶ 13 

(the purpose of § 13-1302(A)(2) is to give “both parents equal access to their 

child and forbidding either parent from hiding a child from the other”); 

Donahue, 140 Ariz. at 57. When rendering its temporary order, the superior 

court did not abuse its discretion by considering Mother’s failure to secure 

consent from Father before moving M.K. from Arizona. See A.R.S. 

§ 25-403(A)(6) (which parent is more likely to allow the child frequent, 

meaningful, and continuing contact with the other parent). 

 

7 Mother’s reliance on the presumption of maternal custody for 

children born out of wedlock in A.R.S. § 13–1302(B) is misplaced because 

“the present case does not involve criminal prosecution, [therefore, the 

statute] does not apply.” Juv. Action No. JD-4974, 163 Ariz. at 63. 

8 “’Legal parent’ means a biological or adoptive parent whose 

parental rights have not been terminated. Legal parent does not include a 

person whose paternity has not been established pursuant to § 25-812 or 

25-814.” A.R.S. § 25-401. 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

16 

E. The Superior Court Did Not Err by Issuing Temporary 

Orders That May Require Mother to Return to Arizona With 

M.K. 

¶46 Mother argues that because Father did not file a petition to 

establish legal decision-making until she already resided in Wisconsin with 

M.K., the superior court did not have the authority to enter an order 

effectively forcing her and the child to move back to Arizona so that Father 

could exercise his parenting time in Arizona. Because we conclude Father 

was M.K.’s legal parent as of the day he signed the voluntary 

acknowledgement of paternity, Mother’s argument fails, as the superior 

court was merely following the statutory scheme described supra, and acted 

within its authority. 

¶47 The superior court explained its reasoning for issuing the 

temporary orders as follows: 

 Section 25-403(A) enumerates specific factors for the 

Court to consider, among all factors that are relevant to the 

children’s physical and emotional well-being. The best 

interest of a child is the primary consideration in awarding 

legal decision-making authority and parenting time. Hays v. 

Gama, [citation omitted]. 

 In making the legal decision-making and parenting 

time determination, the Court is mindful that as a matter of 

public policy, absent evidence to the contrary, “it is in a child’s 

best interest: (1) To have substantial, frequent, meaningful 

and continuing parenting time with both parents[; and] (2) To 

have both parents participate in decision-making about the 

child.” A.R.S. § 25-103(B). Subject to the results of Father’s 

hair follicle test, which was ordered at the February 10, 2017 

hearing, Mother has not presented sufficient evidence to 

depart from the public policy to allow both parents 

“substantial, frequent, meaningful and continuing parenting 

time” with the child and to participate in decision-making 

about the child. Indeed, it appeared from the evidence that 

Mother’s relocation with the child to Wisconsin primarily was 

for the benefit of Mother and her family--not for the child’s 

best interests. 

 The Court specifically rejects Mother’s position that (i) 

the child should be with Mother “24/7”, and (ii) Father 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

17 

should not be permitted overnight parenting time until the 

child is two years old. Indeed, Planning for Parenting Time: 

Arizona’s Guide for Parents Living Apart,

[9] which Mother 

introduced into evidence, provides that: (i) “[b]abies begin to 

respond to a range of different (but equally valuable) types of 

parenting styles that each parent provides”; and (ii) “it’s 

important that [babies] have frequent contact with each of 

their parents and have a stable schedule and routine.” 

(Arizona’s Guide for Parents Living Apart, p.21). Moreover, 

contrary to what Mother suggests, the fact that the child is 

breastfeeding is not a basis to restrict Father’s parenting time. 

In this regard, the Guide provides: 

Parents who are not raising their child together 

must balance the baby’s need to nurse with its need 

to bond with the father. The parents should talk 

often and openly with each other about the baby. 

Breast-feeding shouldn’t be used to stop the father 

from spending time with the child. Instead, mothers 

need to offer the father parenting time, and fathers 

need to be flexible regarding the need of the baby 

to nurse. A father can feed an infant with the 

mother’s expressed (pumped) milk, particularly after 

nursing routines are well established. . . . 

(Id., p.57). 

 Finally, it is not possible to create a long-distance 

parenting plan that facilitates the child’s need to bond with 

both parents while Mother and the child continue to live in 

Wisconsin and Father continues to live in Arizona. The 

Court is mindful that one of the parties will be burdened 

regardless of which state the Court selects as the primary 

location for Father’s parenting time. In determining whether 

the parenting time should occur primarily in Wisconsin or 

Arizona, the Court considered (among other things): (i) 

Arizona is the child’s “home state” and birth state; (ii) 

Mother, Father and the child lived together in Arizona from 

 

9 Arizona Supreme Court, Planning for Parenting Time: Arizona’s Guide 

for Parents Living Apart, (2009), available at 

http://www.azcourts.gov/portals/31/parentingTime/PPWguidelines.pdf. 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

18 

the child’s birth until at least September 29, 2016, when 

Mother decided to relocate with the child to Wisconsin 

without Father’s consent; (iii) Father (who Mother is asking 

pay child support) has an established job in Arizona, which 

he would have to give up to relocate to Wisconsin in 

order to have frequent contact with the child; (iv) Mother 

does not have a regular job in Wisconsin that she would 

have to quit if she decided to relocate to Arizona; (v) Mother 

testified that, if she continued to live in Wisconsin as she 

desires, she would be willing to bring the child to Arizona 

for Father’s parenting time only as her financial resources 

permitted; and (vi) if Mother continues to live with the child 

in Wisconsin, Father either will have to miss work frequently 

or reduce the frequency of his parenting time below the ideal 

level for the child to bond with Father. 

¶48 Mother does not cite to any Arizona authority that restricts a 

superior court from issuing a temporary order requiring parenting time to 

take place in a state different than where the mother and child currently 

live.10 The superior court considered the advantages and disadvantages to 

both parents when determining whether the best parenting plan for M.K. 

should have Father’s parenting occur in Arizona or Wisconsin, recognizing 

that one of the parents would be burdened regardless of which state the 

court selected.

¶49 Thus, Mother has not shown that the superior court abused 

its discretion by ordering Father’s parenting time to occur in Arizona. Kay 

S. v. Mark S., 213 Ariz. 373, 383, ¶ 51 (App. 2006) (in considering and 

 

10 In support of her argument, Mother cites several out-of-state cases. 

See Mark T. v. Jamie Z., 124 Cal. Rptr. 3d 200, 203 (Cal. Ct. App. 2011) (a trial 

court must not issue a conditional order to coerce the custodial parent into 

abandoning plans to relocate); In re Marriage of Smith, 3 N.E.3d 281, 282 (Ill. 

App. Ct. 2013) (overturning a temporary order requiring mother to either 

move back to Illinois or lose physical custody of her child); Smith, 941 

N.E.2d at 4 (finding Mother of child born out-of-wedlock was free to move 

before paternity determination); In re Marriage of Littlefield, 940 P.2d 1362, 

1363 (Wash. 1997) (finding a trial court should make parenting plan 

decisions based on the circumstances of the parents and children as they 

exist at the time of trial). Given that under Arizona law Father had parental 

rights at the time Mother took M.K. to Wisconsin, we do not find these cases 

persuasive. 
GUTIERREZ V. HON FOX/KIVLIGHN 

Opinion of the Court 

19 

weighing different facts, courts might reach different conclusions without 

abusing their discretion). We defer to the superior court’s discretionary 

findings and exercise of judgment regarding witness credibility and the 

weighing of evidence, if the superior court remains within the bounds of 

that discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5 (App. 1998); In 

re Marriage of Inboden, 223 Ariz. 542, 544, ¶ 7 (App. 2010); see Ariz. R. Fam. 

Law P. 82(A). 

CONCLUSION 

¶50 We accept jurisdiction of the petition for special action, but 

deny relief because the superior court did not err by issuing its temporary 

orders.