Griffith v. Bennett

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

DANIEL WILLIAM GRIFFITH, Petitioner/Appellant,

v.

DELILAH JOE BENNETT, Respondent/Appellee.

No. 1 CA-CV 25-0671 FC
FILED 05-28-2026

Appeal from the Superior Court in Coconino County
No. S0300DO202400398
The Honorable Ted Stuart Reed, Judge

VACATED AND REMANDED

COUNSEL

Harris & Winger, P.C., Flagstaff
By Chad Joshua Winger
Counsel for Petitioner/Appellant

Aspey Watkins & Diesel, PLLC, Flagstaff
By Isabel M. Humphrey
Counsel for Respondent/Appellee
GRIFFITH v. BENNETT
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Veronika Fabian and Chief Judge Randall M. Howe joined.

B R O W N, Judge:

¶1 Daniel Griffith (“Father”) appeals the superior court’s order
dismissing his petition for dissolution, legal decision-making, and
parenting time. Because the court failed to make the requisite “home state”
determination under the Uniform Child Custody Enforcement and
Jurisdiction Act (“UCCJEA”), we vacate the order and remand for further
proceedings.

BACKGROUND

¶2 Father and Delilah Bennett (“Mother”) share one minor child
(“Child”), born in May 2023 in Tuba City, on the Navajo Nation. Child’s
birth certificate lists Mother’s residential address as being located in Page,
Arizona. Mother, but not Father, is a member of the Navajo Nation. Central
to this appeal is where Child lived in the months before Father filed his
December 2024 petition for dissolution, and thus whether Arizona or the
Navajo Nation is Child’s home state under the UCCJEA. See A.R.S.
§ 25-1002(7)(a)–(b) (defining a child’s home state).

¶3 Mother and Father married in July 2024. Mother asserts that
she attends college in Page and lives there during the week while Child
stays with Mother’s relatives in Tuba City. Mother usually returns to Tuba
City on the weekends. But Father claims the family resided in Page from
Child’s birth through October 2024 when Child’s maternal relatives moved
her to Tuba City. Mother disagrees, stating the parties lived separately
starting one month after their marriage, or from August 2024 onward.

¶4 Mother petitioned the Navajo Nation Family Court (“Navajo
Court”) for a domestic abuse protection order in December 2024. She
alleged that Father (1) committed domestic violence against her in 2022, (2)
took Child to California without her permission for several months in 2023,
and (3) threatened to take Child away again in November 2024. Mother
also petitioned to establish paternity, requested child custody and support
orders, and asked for annulment or dissolution of the marriage. Mother

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served Father with both petitions. The Navajo Court granted a temporary
protective order and set a hearing for the following week but Father did not
appear. The court issued a final order of protection, which precluded
Father from contacting Mother and awarded her temporary physical
custody as well as temporary child support.

¶5 Father moved to vacate the Navajo Court’s order, asserting he
was not served with notice of the hearing. Because the record did not show
Father was served, the court vacated its order. The court set a new hearing
and mailed the notice to both Father and Father’s counsel. When Father did
not appear at the new hearing, the court reinstated its previous order.

¶6 The day after Father was served with Mother’s petitions, he
petitioned for dissolution in the superior court, requesting sole legal
decision-making for Child. Mother moved to dismiss Father’s petition for
lack of subject matter jurisdiction and alternatively asserted that Arizona is
an inconvenient forum. After additional briefing, but without conducting
an evidentiary hearing, the superior court dismissed Father’s petition.
Father timely appealed, and we have jurisdiction under A.R.S.
§ 12-2101(A)(1).

DISCUSSION

I. Child Custody Issues and the UCCJEA

¶7 The UCCJEA, adopted by Arizona in 2001, is designed to
“[a]void jurisdictional competition and conflict with courts of other States
in matters of child custody.” UCCJEA § 101 cmt. 1 (Unif. L. Comm’n 1997);
A.R.S. §§ 25-1001 to -1067; see Welch-Doden v. Roberts, 202 Ariz. 201, 208,
¶ 29 (App. 2002). The Navajo Nation has not adopted the UCCJEA, but
Arizona considers a tribal nation a “state” for purposes of the UCCJEA.
A.R.S. § 25-1004(B). 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).

¶8 Under the UCCJEA, Arizona has jurisdiction over child
custody matters when Arizona qualifies as the home state. A.R.S.
§ 25-1031(A)(1), (B). As pertinent here, the home state is where “a child
lived with a parent or a person acting as a parent for at least six consecutive
months immediately before the commencement of a child custody
proceeding, including any period during which that person is temporarily
absent from that state.” A.R.S. § 25-1002(7)(a). This court has interpreted
the six-month requirement as follows:

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We hold that “home state” for purposes of determining initial
jurisdiction under § 25-1031(A)(1) is not limited to the time
period of “six consecutive months immediately before the
commencement of a child custody proceeding[.]” A.R.S.
§ 25-1002(7)(a). Instead, the applicable time period to
determine “home state” in such circumstances is “within six
months before the commencement of the [child custody]
proceeding.” A.R.S. § 25-1031(A)(1).

Welch-Doden, 202 Ariz. at 208–09, ¶ 33 (concluding that although the child
lived in Arizona for four months immediately before the child custody
proceeding, Oklahoma was the home state because the child lived there for
six consecutive months before moving to Arizona). Only when no state
qualifies as the home state may a court consider other “substantive factors”
for determining jurisdiction. Id. at 208, ¶ 31.

A. Evidentiary Hearing

¶9 Father argues the superior court abused its discretion and
violated his due process rights by failing to conduct an evidentiary hearing
to determine where Child lived. Citing Volk v. Brame, 235 Ariz. 462 (App.
2014), Father claims an evidentiary hearing is needed to resolve disputed
facts. Id. at 464, ¶ 2 (“It is fundamental to due process that a court provide
a forum for witness testimony, and that it refrain from resolving matters of
credibility on documents alone.”).

¶10 Before an Arizona court “conducts a proceeding concerning
legal decision-making or parenting time,” the court “first must confirm its
authority to do so to the exclusion of any other state [or] Indian tribe . . . by
complying with the [UCCJEA].” A.R.S. § 25-402(A). This directive is in
force whether Arizona or another state or tribe is the first to begin a custody
proceeding. See Welch-Doden, 202 Ariz. at 211, ¶¶ 46–47.

¶11 The superior court’s dismissal order listed several undisputed
facts but did not make findings about the disputed facts. Critically, the
parties dispute where Child lived in the months preceding the filing of
Father’s petition. The superior court merely repeated the parties’
allegations: (1) Mother “alleges that the minor child lived ‘primarily’ at
Tuba City, Navajo Nation, and that she has not lived for a period of at least
six (6) consecutive months in the state of Arizona”; and (2) Father “alleges
that the minor child has lived the ‘clear majority’ of her life in Arizona.” In
doing so, the court failed to resolve the factual disputes that dictate the
home state and the court’s jurisdiction under the UCCJEA.

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¶12 Instead, the superior court held that Father’s failure to appear
at the rescheduled hearing in the Navajo Court “constitute[d] a waiver” of
his objections to the final order of protection, which included a child
custody order. The superior court also concluded that the Navajo Court
had “jurisdiction [] ‘substantially in accordance’ with the UCCJEA
provisions,” because the Navajo Court “afforded due process” to Father.
The superior court concluded that A.R.S. § 25-1036(B) mandated dismissal
of the child custody petition and all related matters.

¶13 The superior court failed to recognize what § 25-1036(B)
requires as jurisdiction “substantially in accordance with this chapter.” The
chapter referenced is Arizona Revised Statutes title 25, chapter 8—the
UCCJEA. And the UCCJEA unequivocally “prioritizes home state
jurisdiction.” 9 Unif. L. Annotated 650–51 (1999); see Welch-Doden, 202 Ariz.
at 208, ¶ 30.

¶14 The UCCJEA does not expressly require an evidentiary
hearing on a child’s home state. However, a court must determine
“whether the factual circumstances [] are in substantial conformity with
UCCJEA’s jurisdictional standards” based on “evidence related to the
location of [a child]’s residence with a parent or a person acting as a parent.”
Holly C., 247 Ariz. at 513, ¶ 55 (citation modified) (emphasis added). When
facts are undisputed, a hearing to determine the home state is not necessary.
See Kubal v. Anderson, 8 N.W.3d 811, 815, ¶ 7 (N.D. 2024) (affirming the trial
court’s ability to determine the home state based on undisputed facts); cf.
Madison C. v. Marwil, 255 Ariz. 244, 249, ¶ 25 (App. 2023) (“Arizona courts
interpret uniform laws consistently with sister jurisdictions.”). But when
“a court’s jurisdictional determination rests on disputed facts, . . . we accept
the court’s findings if reasonable evidence and inferences support them.”
Holly C., 247 Ariz. at 505, ¶ 26.

¶15 Without findings, we have nothing to accept or affirm. See
Anthony v. Wilkins, 1 CA-SA 15-0237, 2015 WL 5619371, at *2, ¶ 4 (Ariz. App.
Sept. 24, 2015) (mem. decision) (vacating a child custody order and
directing the superior court to make specific findings of fact and
conclusions of law about the child’s home state in accordance with A.R.S.
§§ 25-402 and -1031). Mother acknowledged that where Child lived was
disputed and asked the superior court to set an evidentiary hearing.
Instead, the court concluded it could rule “[b]ased on the pleadings.”

¶16 The North Dakota Supreme Court addressed a similar issue
in Schirado v. Foote, 785 N.W.2d 235 (N.D. 2010). A non-Indian father
presented a custody claim in state court. Schirado, 785 N.W.2d at 236, ¶ 2.

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The mother, an enrolled member of an Indian tribe, lived at her university
in North Dakota. Id. The child lived with the maternal grandparents on an
Indian reservation; the mother visited the child on the weekends. Id. The
mother moved to dismiss the father’s state court action for lack of subject
matter jurisdiction and later petitioned the tribal court for custody. Id. at
237, ¶ 3. The tribal court granted her temporary custody. Id. The state’s
trial court dismissed the father’s custody case, finding the Indian
reservation was the home state. Id. at 237–38, ¶ 6. The North Dakota
Supreme Court vacated the dismissal order because the trial court failed to
make express factual determinations on where the child lived, and with
whom, to support its home state designation. Id. at 239–41, ¶¶ 13–16.

¶17 Here, the superior court erred by failing to decide under the
UCCJEA whether Arizona has jurisdiction over this child custody matter,
based on the child’s home state. And whether Mother petitioned the
Navajo Court first or whether Father failed to appear in the Navajo Court
does not affect the legal analysis of home state determination. See Welch-
Doden, 202 Ariz. at 211, ¶¶ 46–47 (concluding that jurisdiction is based on
the home state determination, not a first-in-time determination); C.L. v.
Z.M.F.H., 18 A.3d 1175, 1177–79 (Pa. 2011) (noting that a father’s failure to
appear in tribal court did not affect the jurisdictional determination
between a tribal court and a state court).1

B. Conference with the Navajo Court

¶18 Father contends the superior court abused its discretion and
violated his due process rights by failing to hold an inter-court conference
with the Navajo Court to address home state jurisdiction. The UCCJEA
directs the superior court, “before hearing a child custody proceeding,”
A.R.S. § 25-1036(B), to examine pleadings and affidavits detailing where
and with whom a child has lived for the last five years, and whether a
custody proceeding has begun in another state, A.R.S. § 25-1039(A).

¶19 Mother moved to dismiss Father’s petition because Arizona
lacked subject matter jurisdiction, or alternatively, because Arizona is an
inconvenient forum. At that point, the superior court learned of the

1 Mother has not argued that the superior court should defer to the
Navajo Court as a matter of comity. See Holly C., 247 Ariz. at 513–14,
¶¶ 56–58.

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ongoing custody proceeding in the Navajo Court.2 The UCCJEA provides
that when a child custody proceeding has commenced in a court in another
state having “jurisdiction substantially in accordance with” the UCCJEA,
an Arizona court “shall stay its proceeding and communicate” with the
competing court addressing the same child custody matters. A.R.S.
§ 25-1036(B). Such inter-court communication is often called a UCCJEA
conference. See, e.g., Tracy D. v. Dep’t of Child Safety, 252 Ariz. 425, 428, ¶ 7
(App. 2021).

¶20 The Navajo Court awarded Mother temporary physical
custody and ordered Father to pay child support, which means a child
custody proceeding had commenced. See A.R.S. § 25-1036(A). But whether
the competing court has “jurisdiction substantially in accordance with” the
home state designation remains in dispute. See A.R.S. § 25-1036(B). Thus,
at this point in the proceedings, a UCCJEA conference is not required. See
id. Given the simultaneous proceedings, the superior court should have
stayed, rather than dismissed, Father’s petition to resolve the disputed facts
underlying the home state designation and determined whether the Navajo
Court had jurisdiction “substantially in conformity” with the UCCJEA.

C. Inconvenient Forum

¶21 As an alternative argument, Mother requested that the
superior court decline jurisdiction because Arizona is an inconvenient
forum. In its dismissal order, the superior court explained that the Navajo
Court had not declined jurisdiction. Because the superior court then
determined that Father waived his objection to the Navajo Court’s child
custody order, the superior court did not analyze the relevant factors for an
inconvenient forum determination. See A.R.S. § 25-1037(B)(1)–(8).

2 Father filed his petition for dissolution the day after Mother served
him with her petitions from the Navajo Court. Father marked “No” where
the form petition asked if he was a party in another court case about
custody, legal decision-making or parenting time. He also marked “No”
when asked if another court case could affect his claim for legal decision-
making or parenting time. He claims he “had prepared the documents”
earlier; regardless, he misled the superior court by stating, under oath, that
no other court had begun proceedings. The record does not reveal whether
Mother sought sanctions against Father under Arizona Rule of Civil
Procedure 11(b)–(c) or Arizona Rule of Family Law Procedure 26(b)–(c).

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¶22 Father argues the superior court abused its discretion and
violated his due process rights by failing to hold an evidentiary hearing on
the inconvenient forum factors. But an inconvenient forum analysis is
pertinent only after determination of Child’s home state. A.R.S.
§ 25-1037(A) (explaining that a court “that has jurisdiction under this
chapter”—primarily home state jurisdiction—may decline to exercise its
jurisdiction if it is an inconvenient forum). Absent a home state
determination, any analysis of the inconvenient forum factors is premature.

II. Marital and Property Issues

¶23 Father asserts the superior court abused its discretion by
declining “to exercise or retain jurisdiction over the parties’ marital status
and related property and debt issues.” The court dismissed Father’s claim
for divorce and property settlement, referring to the principles of judicial
economy and inconvenient forum.

¶24 “When a married couple with children divorces, a court may
be asked to resolve three sets of issues: (1) dissolution of the marriage; (2)
child custody and visitation; and (3) financial questions including spousal
maintenance, child support, and allocation of marital property and debt.”
Taylor v. Jarrett, 191 Ariz. 550, 552, ¶ 6 (App. 1998). Different jurisdictional
standards govern these three categories. Id. As explained above,
jurisdiction over child custody issues is determined by the UCCJEA. A.R.S.
§ 25-1031(A). Jurisdiction over the dissolution of marriage and property is
defined by statute. A.R.S. § 25-312(A) (requiring 90-day domicile of at least
one spouse before the filing of a petition for dissolution). And jurisdiction
over child custody issues does not necessarily dictate jurisdiction over the
marital or property issues. See, e.g., A.R.S. § 25-1037(D) (explaining that an
Arizona court may decline to exercise jurisdiction over a child custody
determination on an inconvenient forum basis while “still retaining
jurisdiction over the divorce”).

¶25 Generally, we “will not overturn the [superior] court’s ruling
on the application of forum non conveniens absent an abuse of discretion.”
Parra v. Cont’l Tire N. Am., Inc., 222 Ariz. 212, 214–15, ¶ 8 (App. 2009).
Failure to balance the relevant inconvenient forum factors is error. Id. at
¶¶ 8–10 (listing the factors and balancing tests required to find an
inconvenient forum in a civil dispute). When a party seeks an inconvenient
forum determination in an action involving child custody matters, the
superior court must consider the factors provided in the UCCJEA. A.R.S.
§ 25-1037(B) (outlining eight factors for an inconvenient forum analysis).
Before deciding Arizona is an inconvenient forum, a court “must consider

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all factors listed in A.R.S. § 25-1037(B) and any other relevant factor and
make appropriate findings on those factors.” Hubert v. Carmony, 251 Ariz.
531, 535, ¶ 14 (App. 2021). The superior court did not do so here, and thus
the court erred in summarily declining to exercise its jurisdiction over the
marital and property issues, which could remain in the superior court for
resolution.

CONCLUSION

¶26 We vacate the superior court’s dismissal order and remand
for the court to determine the Child’s home state, address the A.R.S.
§ 25-1037(B) factors, and make required findings. In our discretion, we
deny Father’s request for attorneys’ fees asserted under A.R.S. § 25-324.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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