Ortega v. Robles

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

RICARDO ORTEGA, Petitioner/Appellant,

v.

HARLEY YURIANA MALAGON ROBLES, Respondent/Appellee.

No. 1 CA-CV 24-0364 FC
FILED 10-09-2025

Appeal from the Yuma County Superior Court
No. S1400DO202000756
The Honorable Eliza B. Johnson, Commissioner

AFFIRMED

COUNSEL

S. Alan Cook, P.C., Phoenix
By S. Alan Cook
Counsel for Petitioner/Appellant

Schneider & Onofry, P.C., Phoenix
By Jon D. Schneider and Dee R. Giles
Counsel for Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the opinion of the Court, in
which Vice Chief Judge David D. Weinzweig and Judge Cynthia J. Bailey
joined.

P E R K I N S, Judge:

¶1 Ricardo Ortega (“Father”) appeals the superior court’s order
denying his motion to alter or amend an order directing him to cross the
border between the United States and Mexico to exchange his daughter
(“Child”) with Harley Yuriana Malagon Robles (“Mother”) for parenting
time. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Child was born to Father and Mother, an unmarried couple,
in Yuma in 2019. When Child was ten months old, Father petitioned to
establish paternity, legal decision-making, parenting time, and child
support. In May 2022, the superior court entered an order establishing
Father’s paternity, awarding joint legal decision-making, setting a
parenting-time schedule, and directing Father to pay child support to
Mother.

¶3 Mother was arrested for shoplifting in April 2023. While
criminal charges were pending in Yuma County Justice Court, Mother was
transferred into Immigration and Customs Enforcement custody. Father
petitioned for sole legal decision-making and parenting time, fearing
Mother would kidnap Child and flee to Mexico if she were released from
ICE custody. The superior court issued a temporary, ex parte order granting
Father’s petition.

¶4 Mother confirmed in her response to Father’s petition that she
had been deported to Mexico. Based on that information, the superior court
issued a temporary order denying Mother parenting time but allowing
daily phone and video contact. After litigation and an evidentiary hearing
on Father’s petition, the superior court issued a final order awarding Father
primary parenting time and designating Father as Child’s primary
residential parent. But the order also awarded Mother parenting time “to
be exercised at her home in . . . Mexico.” The final order’s parenting plan

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directed the parties to exchange Child at the San Luis port of entry or have
Father transport Child directly to and from Mother’s home in Mexico.

¶5 At the first scheduled exchange, Father demanded that
Mother pick Child up at a park on the Arizona side of the border. Mother
moved the court for clarification of its final order. The court clarified that
Father must “meet Mother at the port of entry or travel further into Mexico
to Mother’s home for the exchange of [Child]. It is implied within these facts
and statements that Father will exchange [Child] on the Mexico side of the
port of entry.”

¶6 Father moved to alter or amend the parenting-time order
under Arizona Rule of Family Law Procedure 83. Father, as a citizen of
Mexico and a legal resident of the United States, can legally travel between
countries. He argued however that traveling to Mexico was an onerous
burden and asked the court to authorize a third party to pick Child up at
the Yuma Police Department. The court summarily denied Father’s Rule 83
motion.

¶7 Father timely appealed, but then requested a stay so he could
move for relief from the judgment under Rule 85. We granted the stay, and
Father filed the motion, arguing the parenting-time order was
unconstitutional because it required him and Child to exit the United States.
The court denied the motion. Father timely filed an amended notice of
appeal. We have jurisdiction. A.R.S. § 12-2101(A)(1)–(2).

DISCUSSION

¶8 In his opening brief, Father argues the superior court erred in
denying his Rule 83 motion because the final order directing him to travel
to Mexico to exchange Child with Mother is unconstitutional. He asserts
that neither the federal government nor a state court has authority to expel
or deport him (a legal permanent resident of the United States) or Child (a
United States citizen) to a “third-world country” where they lack
constitutional protections.

I. Preemption

¶9 We must first decide whether federal authority over
immigration preempted the part of the parenting-time order requiring
Father and Child to travel to Mexico. Although Father never explicitly
argued preemption, we must address it because objections to a court’s
subject-matter jurisdiction cannot be waived. See Bruce v. State, 126 Ariz.
271, 272 (1980); see also Gilchrist v. Jim Slemons Imps., Inc., 803 F.2d 1488, 1497

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(9th Cir. 1986) (“[A] preemption argument that affects the choice of forum
rather than the choice of law is not waivable; thus, it can be raised for the
first time on appeal.”).

¶10 We ordered supplemental briefing on whether federal
immigration law preempted the order, noting one potentially relevant
statute. See 8 U.S.C. § 1185(a)(1). Section 1185(a)(1) provides that unless the
President orders otherwise, “it shall be unlawful . . . for any alien to depart
from or enter or attempt to depart from or enter the United States except
under such reasonable rules, regulations, and orders, and subject to such
limitations and exceptions as the President may prescribe.”

¶11 Whether a court has subject-matter jurisdiction is a question
of law that we review de novo. State v. Flores, 218 Ariz. 407, 410, ¶ 6 (App.
2008). The Tenth Amendment reserves to the states all powers not
delegated to the federal government, but the Supremacy Clause provides
that federal law preempts incompatible state law. See Oneok, Inc. v. Learjet,
Inc., 575 U.S. 373, 376 (2015). The federal government has plenary authority
over immigration, and thus state laws that clearly conflict with federal
immigration law must yield. In re Marriage of Quijada and Dominguez
(“Quijada”), 257 Ariz. 432, 437, ¶ 20 (2024). In weighing these conflicts, “we
presume that state law prevails unless we find a manifest intent to adopt
federal law.” Id. at ¶ 18. “This presumption against preemption is
particularly strong in fields which the States have traditionally occupied,”
such as domestic relations. Id. at ¶ 19 (cleaned up); Haaland v. Brackeen, 599
U.S. 255, 276 (2023) (“[R]esponsibility for regulating marriage and child
custody remains primarily with the States.”).

¶12 Federal law preempts state law when (1) a statute contains an
express preemption provision, (2) Congress has occupied the field
exclusively, or (3) state law conflicts with federal law. Arizona v. United
States, 567 U.S. 387, 399 (2012). To start, federal law does not expressly
preempt the parenting-time order. Father has not identified, nor are we
aware of any federal provision that expressly preempts the states’ authority
to issue parenting-time orders.

¶13 The order is also not preempted on the ground that Congress
occupied the entire field. Father argues state courts lack jurisdiction over
“the entire field of law that relates in any way to forcing aliens or American
citizens to involuntarily leave the territorial confines of the [United States]
for any reason.” A state law is preempted when “Congress legislates so
comprehensively in a particular field that it leaves no room for
supplementary state legislation.” Kansas v. Garcia, 589 U.S. 191, 208 (2020).

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The “[p]ower to regulate immigration is [] exclusively a federal power,” but
not “every state enactment . . . deal[ing] with aliens is a regulation of
immigration.” DeCanas v. Bica, 424 U.S. 351, 354 (1976), superseded by statute
on other grounds as stated in Garcia, 589 U.S. at 195. Immigration regulations
determine “who should or should not be admitted into the country, and the
conditions under which a legal entrant may remain.” Id. at 355.

¶14 Father is a legal resident, making him an “alien” for purposes
of federal immigration law. See 8 U.S.C. § 1101(a)(3). Even though the
order requires an alien to cross the border, it is not an immigration
regulation because it does not “determine the legality of [Father’s] presence
in the United States.” Flores, 218 Ariz. at 412, ¶ 13. The order merely requires
Father to cross the border, which he is independently permitted to do by
federal law. Thus, the order does not regulate conduct in a field that
Congress has exclusively occupied. See id.

¶15 Finally, the order does not conflict with federal law. A conflict
exists when it is impossible to comply with both federal and state law or
when a state law is an “obstacle to the accomplishment and execution of the
full purposes” of a federal law. Arizona, 567 U.S. at 399. Father argues
Section 1185 gives the President sole authority to determine how and when
aliens and citizens enter or leave the United States, see 8 U.S.C. § 1185(a)(1)
(aliens), (b) (citizens), and therefore it precludes states from deciding when
they “may be ordered to leave the United States,” like the order did with
Father. This interpretation is not unreasonable. But it is also reasonable to
read Section 1185 as merely requiring aliens and citizens to follow the
President’s rules, regulations, and orders to be able to cross the border. And
thus Section 1185 does not preclude states from ordering people to cross the
border if the President’s rules, regulations, and orders permit them to do
so.

¶16 Because domestic relations is traditionally a state function, we
will not read Section 1185 to supersede the parenting-time order “unless
that was the clear and manifest purpose of Congress.” Quijada, 257 Ariz. at
438, ¶ 25 (cleaned up). Section 1185 contains no such purpose. Father has
not identified, nor are we aware of, any federal immigration objectives that
would be hindered by state courts ordering a parent to temporarily cross
the border, when federal immigration law allows him to cross freely. And
it is not impossible for Father to comply with the parenting-time order and
federal immigration law because federal law permits him to cross the
border. For these reasons, we conclude that federal law does not preempt
the order.

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II. Constitutional claims

¶17 Father argues it was unconstitutional for the court to order
him and Child to travel to Mexico, but he cites no legal authority to support
that claim. Instead, Father speculates that the order was an unconstitutional
form of deportation that forced him and Child to enter Mexico, where they
lack constitutional protections. But “deportation . . . is not synonymous
with mere departure from the country[, it] denotes an involvement by the
federal government and means, in effect, an official expulsion.” Lopez v.
Franklin, 427 F. Supp. 345, 347 (E.D. Mich. 1977) (cleaned up); see also
E.O.H.C. v. Sec’y U.S. Dep’t of Homeland Sec., 950 F.3d 177, 184 (3d Cir. 2020)
(“Removal . . . means sending an alien back permanently to his country of
origin.”). Father has not argued, and we do not know of any basis on which
the parenting-time order violates the Constitution.

¶18 Father argues, in his reply brief, that the superior court’s
jurisdiction is defined by statute, and no statute authorizes the court to
order a citizen to travel to another country. Arizona Revised Statutes
Section 25-403.02 provides that if the parents cannot agree on a parenting
plan, the superior “court shall adopt a parenting plan” that includes “[a]
practical schedule of parenting time” and “[a] procedure for the exchanges
of the child, including location and responsibility for transportation.” A.R.S. §
25-403.02(A)–(C)(4) (emphasis added). Thus, the court has the authority to
direct the location of parenting time. Father has not provided, nor are we
aware of, anything confining that authority to within the borders of the
United States.

B. Best interests

¶19 Father argues the court abused its discretion because the
parenting-time schedule was impracticable and not in Child’s best interests.
He asserts that it endangers Child by making her travel to Mexico, and that
it causes Child to be late or absent from school.

¶20 We review parenting-time orders for an abuse of discretion.
Gish v. Greyson, 253 Ariz. 437, 444, ¶ 31 (2022). We also review for an abuse
of discretion denials of Rule 83 motions to amend and Rule 85 motions for
relief. Wisniewski v. Dolecka, 251 Ariz. 240, 241, ¶ 5 (App. 2021); Clark v.
Kreamer, 243 Ariz. 272, 275, ¶ 10 (App. 2017). An abuse of discretion occurs
if the court makes an error of law in reaching a discretionary conclusion,
DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019), fails to consider
evidence in reaching a conclusion, or makes a finding of fact that lacks
substantial evidence in the record. Flying Diamond Airpark, LLC v. Meienberg,

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215 Ariz. 44, 50, ¶ 27 (App. 2007). We defer to a court’s factual findings
unless they are clearly erroneous. Engstrom v. McCarthy, 243 Ariz. 469, 471,
¶ 4 (App. 2018).

¶21 The court “has discretion to determine parenting time based
on all the evidence before it.” See Gonzalez-Gunter v. Gunter, 249 Ariz. 489,
492, ¶ 11 (App. 2020). But it must consider the best interests of the child in
making its parenting-time determinations, including the factors listed in
Section 25-403(A). A.R.S. § 25-403(B). Parenting plans must also include a
“practical schedule of parenting time for the child” that “maximizes [each
parent’s] parenting time.” A.R.S. § 25-403.02(B), (C)(3).

¶22 The court considered and made findings on all the required
best-interests factors. See A.R.S. § 25-403(A). The court weighed Father’s
concerns about Child’s safety in traveling to Mexico and found the danger
did not outweigh the benefit of in-person visits with Mother. That is a
discretionary finding, to which we defer without reweighing the evidence.
Gutierrez v. Fox, 242 Ariz. 259, 272, ¶ 49 (App. 2017).

¶23 The court also did not abuse its discretion by denying Father’s
motion to amend the parenting plan. Father requested that the exchange
occur on Sunday evening instead of Monday morning, and that one of
Mother’s relatives drive Child across the border instead of Father.
Reasonable evidence supports the court’s finding that it was in Child’s best
interests for Mother to have meaningful in-person parenting time. The
court thus had the discretion to require that parenting time to extend to
Monday morning. And given Child’s young age, reasonable evidence
supports the court’s finding that Father personally driving Child across the
border “was the least intrusive option for the Court considering the
circumstances.”

¶24 We recognize that requiring Father to drive Child across the
border effectively saddles Father with the repercussions for Mother’s
misconduct that got her deported. But that outcome does not render the
parenting-time order erroneous. In adopting a parenting plan, equitable
considerations of the parents are always secondary to the child’s best
interests. See Smith v. Smith, 253 Ariz. 43, 47, ¶ 18 (App. 2022) (we do not
require courts to order maximal or near-equal parenting time, only that the
parenting plan is in the child’s best interests); Dunbar v. Dunbar, 102 Ariz.
352, 354 (1967) (“[Parents’] happiness and their desires will never be
allowed to interfere with the child’s true welfare.”). And we will not
second-guess the superior court’s weighing of those considerations. See

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Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App. 2019). The court did not
abuse its discretion.

CONCLUSION

¶25 We affirm. Both parties request attorney fees on appeal. After
considering the factors under Section 25-324, we decline to award either
party their attorney fees or costs on appeal.

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

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