The following case citations are from the decade of law practice of former
Arizona Fathers Rights Attorney Robert A. Hirschfeld. Each time he cited a
case in a pleading, he also copied it to the end of this file. When
retrieving, he loaded the file into his Microsoft Word processor, and did
a "search" for a key word, which would jump to, and highlight each
occurrence of that key word in this random-order text file. It may take you
awhile to read the file, but you just might find something you've been
This file is online readable on Internet web browsers at:
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ROBERT A. HIRSCHFELD, JD
PO Box 696
Lukeville AZ 85341
(Mexico Phone) 011 52 638 382 0214
Last Revised: December 4, 1995
PART A (This is one of five sections)
Although under ARCP Rule 5(c) service by mail is complete upon mailing,
such mailing is effective only if "properly addressed". See Goodman v.
Jones, 433 P.2d 980, 102 Ariz. 532 (1967)
Although under ARCP Rule 5(c) service by mail is complete upon mailing,
such mailing is effective only if "properly addressed". See Emblen v.
Southern Adjustment Bureau, Inc., 403 P.2d 294, 1 Ariz. App. 359 (App.1965)
...nor does the act alleged, rise to the level considered in Arizona
sufficient to maintain an action for Intentional Infliction of Extreme
Emotional Distress. See Savage v. Boies, 77 Ariz. 355, 272 P.2d 349 (1954).
To require two judges of this Court to independently adjudicate such
duplicative matters is judicially uneconomical. See: U.S. v. Miller (9th
Cir. 1964) 331 F.2d 414.
"....proceedings...would be consolidated in...the first court to
properly entertain jurisdiction, where to allow both actions to
continue simultaneously in separate courts would wreak havoc with the
orderly administration of justice and impose undue burdens on the
courts and interested parties." Matter of Appeal in Maricopa County
Juvenile Action No. A-27789 (Ariz. Supreme Court 1984) 140 Ariz. 7;
680 P.2d 143.
Under Rule 12(i)(3), Federal Rules of Civil Procedure, this Court may
summarily dismiss "Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject matter..."
"Rule 54(b) allows the district court to "direct the entry of a final
judgment as to one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason for delay and
upon express direction for the entry of judgment." The district court did
not make an "express determination that there is no just reason for delay."
See Frank Brisco Co., Inc. v. Morrison-Knudsen Co., Inc., 776 F.2d 1414,
1416 (9th Cir. 1985).
"...an adverse party may not rest upon mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided by this
rule, must set forth specific facts showing that there is a genuine issue
for trial. F.R.C.P. Rule 56(e).
Rule 11, in both Arizona and Federal Rules of Civil Procedure,
provides for sanctions:
"If a pleading, motion or other paper is signed in violation of this
rule, the court, upon motion or upon its own initiative, shall impose
upon the person who signed it, a represented party, or both, an
appropriate sanction, which may include an order to pay the other
party or parties the amount of the reasonable expenses incurred
because of the filing of the pleading, motion or other paper,
including a reasonable attorney's fee." Rule of Civil Procedure 11a
"We find that (the new state, South Dakota) is an inconvenient forum
...and that (the home state, California) would be a more appropriate
forum. Although there is a connection....it would appear that
(California) has a closer connection...based upon the fact that (the
children) resided in (California) for approximately five years prior
to the commencement of this action." Winkelman v. Moses, (S.Dakota
Supreme Court 1979) 279 N.W. 2d 897.
"We deem ...unilateral removals of children without notice and
approval...to be of no effect upon the residency of the child or to
be within the classification of a 'temporary absence to be counted as
part of the six-month home state period.' It would be completely
contrary to the intent and purpose of the Act to qualify for the six-
month home state period by abduction." Winkelman v. Moses, id at 899.
Where relief is sought based upon alleged conditions (i.e., danger of
sexual molestation) in another state, it is the state where said
conditions are alleged to exist which is more appropriate to the
litigation. See Clark v. Superior Court, (1977) 73 Cal. App.3d 298,
140 Cal. Rptr. 709; Schlumpf v. Superior Court, (1978) 79 Cal. App.
3d 892, 145 Cal. Rptr. 190.
Arizona will decline to exercise jurisdiction where, as here, a
parent who wrongfully removed and retained the child from the decree-
issuing state seeks an Arizona modification thereof. Both v. Superior
Court of Mohave County, (1979) 121 Ariz. 381, 590 P.2d 920.
Exercise of Arizona jurisdiction to thwart Respondent's visitation
rights would contravene the purposes of the UCCJA. Loper v. Superior
Court (App. 1980) 126 Ariz. 14, 612 P.2d 65.
"The UCCJA is intended to prevent potential as well as actual
conflict, and prevents bringing modification procedures in unsuitable
forums without making a bona fide attempt to invoke the jurisdiction
of the correct court." Hafer v. Superior Court, (1981) 179 Cal. Rptr
132 at 136.
In order that Arizona assume emergency jurisdiction, it must first
determine that competent, rather than conclusionary or fraudulent,
evidence of emergency exists.See Ferriera v. Ferriera, (1973) 9 Cal.
3d 824, 109 Cal. Rptr. 80, 512 P.2d 304; Hopson v. Hopson, 110 Cal.
App.3d 884, 168 Cal. Rptr 345 at 354; Clark v. Superior Court, 73
Cal. App. 3d 298, 140 Cal. Rptr. 709 at 715,716; Bosse v. Superior
Court, 89 Cal. App. 3d 440, 152 Cal. Rptr. 665 at 667
"The requirement of allegation and proof that the child's health or
safety will be 'jeopardized' includes a showing of substantial
emotional harm or other forms of injury in addition to physical
mistreatment; it does however, suggest that such showing encompass
competent proof of some substantial harm to the child." Ferriera, id.
at 88, note 15. (emphasis supplied)
"In situations in which it is appropriate and reasonably available,
the party seeking (modification) should present affidavits from
independent third parties such as representatives of licensed welfare
agencies, police, public defenders or prosecutors, probation
officers, doctors or clergymen in support of (his) claim that
substantial harm will come to the child if (the responding parent is
allowed access to the child). Ferriera, id. at 88, note 15.
"There was no evidence before the trial court of an emergency
situation which would justify an assumption of jurisdiction...The
court's factual finding was based entirely upon the (petitioner
parent's) unsubstantiated testimony. A parent's self-serving
statements ...are not in and of themselves enough to confer
jurisdiction...If a real emergency exists, then there should
certainly be some evidence available to demonstrate the gravity of
the situation; e.g., medical reports, professional testimony, etc. At
the very least, the parent should be able to provide a convincing
reason why such evidence does not exist." Roberts v. District Court,
(Colo. Supreme Court 1979) 596 P.2d 68 at 71, note 1. (emphasis
Once the Court determines it should assume jurisdiction because an
emergency exists, it must determine whether it should exercise
jurisdiction. Pima County Juvenile Action J-78632, ___Ariz.___, 711
P.2d 1200 (1985).
Finding and holding Petitioner in Contempt of the other UCCJA State's
Order: See Entwistle v. Entwistle, 402 N.Y.S. 2d 213 (S.Ct. App. Div.
At the Court's discretion, Petitioner may be held in criminal
contempt and incarcerated for her contumacious conduct, and/or held
in civil contempt and incarcerated until she performs acts consistent
with complying with the foreign state Decree. See Hendershot v.
Handlan, 248 S.E. 2d 273, 275 (W.Va. 1978); Matter of Lemond, 413
N.E. 2d 228, 231 (Ind. 1980).
In Bloss v. Bloss, 147 Ariz. 524, 711 P.2d 663 (App. 1985) , the
Court of Appeals found that the removal or threatened removal of a
child from the decree-granting state inherently infringes on the
noncustodial parent's visitation rights, and entitles the
noncustodial parent to an evidentiary modification hearing
notwithstanding ARS 25-339.
"...the court shall assess reasonable attorney fees, expenses, and,
at the court's discretion, double damages of not to exceed five
thousand dollars against an attorney or party...if the attorney or
party does any of the following:
1. Brings or defends a claim without substantial justification.
2. Brings or defends a claim solely or primarily for delay or
3. Unreasonably expands or delays the proceeding.
4. Engages in abuse of Discovery."
ARS 12-349(A) (emphasis supplied), amended 1986.
The question of weight given to a child's custodial preference vs.
the child's best interest was ruled upon
In re the Marriage of Mehlmauer, 60 C.A.3d. 104, 131 Cal. Rptr. 325,
wherein a 14 year old boy sought to escape his mother's parental
authority by living with a father who promised relaxed restrictions.
The trial judge stated, "I am not persuaded that his statement is
supported by any mature objective reasoning why he wants to make a
change. Mehlmauer, id. at 60 C.A. 3d 110. The appeal affirmation
"John's affidavit as supported by his own testimony and that of both
of his parents demonstrates little more than he sought the change to
spend more time with his father, wear longer hair and perhaps come
home or go to bed a little later. We cannot say the trial court
abused its discretion in concluding that in spite of John's
preference it was in his best interests to remain in the custody of
In reaching a comparable conclusion regarding a 16 year old girl, an
Illinois Appellate Court, stated:
"...contested custody proceedings... may hinder either parent's
ability to command the child's respect or instill in the child a
willingness to subject (himself) to parental discipline - a quality
of character which is just as desirable today as in biblical times,
but which is extraordinarily difficult to achieve in homes which have
been disrupted by divorce. We do not believe that it is only the
current generation which has been required to face problems of child
discipline, but surely our forebears could not have been beset with
more formidable obstacles than those confronting the state, the
school and the parent at the present time (1965) in the matter of
teen-age discipline . And if the very existence of parental custody
and control were to be left dependent upon the temporary preferential
whim - or perhaps pique - of the child, a successful rearing to
maturity, difficult under ideal circumstances, would be rendered
practically impossible.... The putative prize in this sordid contest
is also the victim, yet how much worse would be the result if the
discretionary decision-making power were, in effect, taken from the
court and given to the child himself." Stickler v. Stickler, 57 Ill.
App. 2d 286, 206 N.E. 2d 720 at 722 (1965).
See also, Swanson v. Swanson, 274 N.E. 2d 465 (1971): "...Carol at
her age (15) was feeling some resentment or irritation at what she
believed to be undue restrictions and believed that fewer
restrictions would be imposed if she became a member of (her
father's) household. Such feelings are not uncommon...It is our
conclusion that the desires and preferences of a child for change in
custodial arrangements is only appropriate when based on reasons
related to a child's best welfare. Where such reasons are absent, as
we believe they are in the instant case, the child's preference is
not an appropriate basis for modifying the custodial provisions." id.
"We conclude that the absence of the required jurisdictional
pleading, combined with the failure of the (dissolution) court to
address the jurisdictional question, deprived that court of
jurisdiction to award custody of the children to husband. The
jurisdictional defect could not be cured by a later finding that the
children in fact did have some significant contact with this state at
the time of the decree. Because of the importance of the
jurisdictional question to the substantive decision to be made, we
refuse to make any presumptions in favor of jurisdiction. We hold
that the custody portion of the dissolution decree is therefore void,
and mother's motion to vacate it should have been granted." Oregon v.
Stork, id. at 641 P.2d 664.
Mere presence of the child in Oregon was insufficient to establish
Oregon jurisdiction there. Loper v. Superior Court (App. 1980) 126
Ariz. 14, 612 P.2d 65.
Oregon was not the child's UCCJA "home state", and it is not
sufficient for the child to be physically in Oregon, such as under
the present temporary Orders, cumulatively for six months or more
after the wrongful July 1986 Oregon petition. Matter of Pima County
Juvenile Action No. J-78632 (App. 1985) 147 Ariz. 527, 711 P.2d 1200,
approved in part, vacated in part on other grounds, 147 Ariz. 584,
712 P.2d 431.
Arizona is not obliged to give full faith and credit to Oregon's July
temporary custody order unless that order was made "under factual
circumstances meeting the jurisdictional requirements of this
chapter" of the UCCJA. ARS 8-413, Recognition of Out-of-State Custody
Decrees. Sholty v. Carruth (App. 1980), 126 Ariz. 458, 616 P.2d 918.
THIS WAS PART A FROM BOB HIRSCHFELD'S CITATION.TXT - TO BE CONTINUED