Lincoln v. McDaniel

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KELILA RENEE LINCOLN,
Petitioner/Appellant,

v.

EDWARD M. MCDANIEL,
Respondent/Appellee.

No. 1 CA-CV 25-0252 FC
FILED 01-20-2026

Appeal from the Superior Court in Maricopa County
No. FC2016-095724
The Honorable Steven McCarthy, Judge

AFFIRMED

COUNSEL

Colburn Hintze Maletta, PLLC, Phoenix
By Henry Alzate
Counsel for Petitioner/Appellant

Edward M. McDaniel, Phoenix
Respondent/Appellee
 LINCOLN v. MCDANIEL
Decision of the Court

MEMORANDUM DECISION

Judge Andrew J. Becke delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.

B E C K E, Judge:

¶1 Kelila Renee Lincoln (“Mother”) appeals the superior court’s
order granting Edward M. McDaniel (“Father”) final legal decision-making
authority and child support and denying Mother’s request to move their
child to Georgia. For the reasons below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father were divorced in 2017 by default decree.
They have one child in common who is currently 10 years old. In 2019,
Father filed a petition to modify legal decision-making, parenting time, and
child support. A hearing was held on the motion in May 2020, and the court
awarded Mother sole legal decision-making authority and child support,
while Father was awarded parenting time.

¶3 Just a few months later, in October 2020, Mother moved to
Georgia with the child. Mother testified that she did this with Father’s
verbal permission, though Father contests he knew the move would be
permanent. In April 2022, Mother petitioned the court for relocation to
allow her and the child to remain in Georgia. In May 2022, the court issued
a temporary order allowing relocation and awarding Father a long-distance
parenting plan.

¶4 In May 2023, Mother brought the child to Arizona to live with
Father. Mother planned to have the child live in Arizona for six months and
then Georgia for six months, though Father did not agree to this because it
would not provide the child with stability. The child remained in Arizona
with Father until January 2024, when Mother, without notifying Father,
picked the child up from school in Arizona and brought the child back to
Georgia.

¶5 Father soon after petitioned to be awarded sole legal decision-
making authority, to be the primary residential parent, and for Mother to
be awarded a long-distance parenting plan. An evidentiary hearing was
held a year later in January 2025, at which Mother and Father both testified.

2
 LINCOLN v. MCDANIEL
Decision of the Court

In February 2025, the court issued an order awarding the parents joint legal
decision-making authority, with Father having final legal decision-making
over any major issues the parties could not resolve after making good faith
efforts. The order also designated Father as the primary residential parent
and ordered Mother to pay Father child support.

¶6 Mother timely appeals the superior court’s order. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 Mother raises four issues: 1) that the court should have
transferred jurisdiction to Georgia under the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”) or held a hearing to consider
it, 2) that the court abused its discretion in granting Father final legal
decision-making authority, 3) that the court incorrectly found Mother
“unilaterally” removed the child to Georgia in January 2024, and 4) that the
domestic violence committed by Father was significant and therefore he
should not have been awarded joint legal decision-making authority.

I. The Superior Court Did Not Abuse its Discretion by Not Holding
a Hearing on Changing Venue Under the UCCJEA.

¶8 Mother argues that Arizona should have transferred
jurisdiction to Georgia for three reasons: 1) Georgia became the child’s
home state because of the temporary relocation order in place, 2) Arizona
no longer had exclusive, continuing jurisdiction, and 3) Arizona is an
inconvenient forum.

A. Home state jurisdiction

¶9 Mother argues that the temporary order granting relocation
meant the child’s home state had changed from Arizona to Georgia.
However, “home state” means the state 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.”
A.R.S. § 25-1002(7)(a). It does not mean the state where the child currently
lives. See In re Marriage of Morris & Mandel, 255 Ariz. 158, 161, ¶ 12 (App.
2023) (stating that physically leaving the state does not mean that that
state’s court has lost jurisdiction, “[r]ather a court has jurisdiction to modify
its initial determination” if it had initial child custody jurisdiction).

3
 LINCOLN v. MCDANIEL
Decision of the Court

¶10 Here, the child lived in Arizona for at least six months prior
to the commencement of the custody proceeding, and therefore Arizona
had jurisdiction to make that initial custody determination. A.R.S. § 25-
1031(A)(1) (“[A] court of this state has jurisdiction to make an initial child
custody determination . . . if . . . [t]his state is the home state of the child on
the date of the commencement of the proceeding.”).

¶11 That jurisdiction was not lost to Georgia due to the temporary
order in place because home state jurisdiction is exclusive and continuing.
Angel B. v. Vanessa J., 234 Ariz. 69, 72, ¶ 11 (App. 2014) (“Once a court with
original jurisdiction issues an initial child custody order, the UCCJEA gives
that court exclusive, continuing jurisdiction over all future custody
determinations.”). Arizona thus had jurisdiction unless it lost its exclusive,
continuing jurisdiction. We next examine whether Arizona had exclusive,
continuing jurisdiction at the time of the order.

B. Exclusive, continuing jurisdiction

¶12 Mother next argues that the court should have transferred
jurisdiction to Georgia because Arizona no longer had exclusive,
continuing jurisdiction under A.R.S. § 25-1032. We review the superior
court’s UCCJEA jurisdiction de novo. Gutierrez v. Fox, 242 Ariz. 259, 264, ¶
17 (App. 2017).

¶13 Under A.R.S. § 25-1032, Arizona has exclusive, continuing
jurisdiction because it was the state where the initial child custody
determination took place. See Angel B., 234 Ariz. at 72, ¶ 11. That jurisdiction
continues until one of two things occurs: (1) the court finds “that neither the
child, nor the child and one parent, nor the child and a person acting as a
parent have a significant connection with this state and that substantial
evidence is no longer available in this state concerning the child’s care,
protection, training and personal relationships,” A.R.S. § 25-1032(A)(1), or
(2) the Arizona or another state’s court “determines that the child, the
child’s parents and any person acting as a parent do not presently reside in
this state.” A.R.S. § 25-1032(A)(2). Neither of those events occurred.

¶14 Father lived in Arizona, the child’s maternal grandmother
and great-grandmother lived in Arizona, and the child had friends from
school and other family in Arizona, showing that the child had a significant
connection with the state. Father provided the child with health insurance
through his employment while working in this state. Thus, substantial
evidence is available in Arizona concerning the child’s care, protection,
training, and personal relationships. See A.R.S. § 25-1032(A)(1).

4
 LINCOLN v. MCDANIEL
Decision of the Court

¶15 Indeed, Mother concedes in her opening brief that Arizona
has exclusive, continuing jurisdiction. With only limited exceptions, “the
decision to discontinue exclusive, continuing jurisdiction belongs to the
court exercising it, and no other.” Melgar v. Campo, 215 Ariz. 605, 607, ¶ 11
(App. 2007). The superior court did not err in exercising exclusive,
continuing jurisdiction over this matter.

C. Inconvenient forum

¶16 Mother then argues that the superior court should have held
a hearing before denying her motion to change venue to Georgia. She
argues that the court should have declined to exercise jurisdiction because
it was an inconvenient forum under A.R.S. § 25-1037. See A.R.S. § 25-
1037(A) (stating that a court may decline to exercise its jurisdiction if it
deems itself an inconvenient forum and that another state’s court is a more
appropriate forum).

¶17 But, Mother’s motion to change venue did not argue that
Arizona was an inconvenient forum under A.R.S. § 25-1037. Rather, it
argued that Georgia was the child’s home state and therefore had
jurisdiction over the matter, citing only “the UCCJEA” in support of her
contention. Because Mother did not bring an inconvenient forum argument
to the superior court, we consider this issue waived. See Ertl v. Ertl, 252 Ariz.
308, 316, ¶ 29 (App. 2021) (waiving issues on appeal that were not raised
before the family court).

II. The Superior Court Did Not Abuse its Discretion by Granting
Father Final Legal Decision-Making Authority.

¶18 Mother argues that because the court found that Mother and
Father could communicate with each other electronically, then it was not in
the best interests of the child to give Father final decision-making authority.
Mother asks us to “vacate the final decision-making award to Father and
reinstate joint legal decision-making.” We review the superior court’s legal
decision-making orders for abuse of discretion. Gish v. Greyson, 253 Ariz.
437, 444, ¶ 31 (App. 2022).

¶19 When deciding issues of legal decision-making, the court
must do so “in accordance with the best interests of the child.” A.R.S. § 25-
403. The court shall consider the factors in A.R.S. § 25-403(A) and -403.01(B)
in “determining the level of decision-making that is in the child’s best
interests.” A.R.S. § 25-403.01(B). When, as here, legal decision-making is a
contested issue, the court must “make specific findings on the record about

5
 LINCOLN v. MCDANIEL
Decision of the Court

all relevant factors and the reasons for which the decision is in the best
interests of the child.” A.R.S. § 25-403(B).

¶20 The court properly considered the factors in A.R.S. §§ 25-
403(A) and -403.01(B) in making its determination. See A.R.S. § 25-403(B). It
made findings on each relevant factor. These findings included that “the
child has significant family ties in Arizona,” that the child has his own room
in Arizona, that Mother owns dogs and the child is allergic to dogs, and that
the child, although young, stated he preferred school in Arizona and has
lots of friends there.

¶21 The court found that, while Mother and Father could
communicate with each other, they “have struggled with cooperating to the
extent needed to effectively coparent . . . .” Additionally, the court noted
that circumstances had changed since 2022 and now “one party having final
decision-making authority will assist the parties and be in the best interest
of the child.” Communication is only one factor out of the many that the
court considered and the court did not abuse its discretion in determining
that granting final legal decision-making authority to Father was in the
child’s best interests. See Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11 (App. 2009)
(noting the superior court is required to consider all relevant factors when
deciding child custody).

¶22 Mother also contends that since the court found the parties
could communicate with each other, then it must grant joint decision-
making authority. But, the court did grant the parties joint decision-making
authority. It granted Father final decision-making authority if the parties
were not able to “agree after making a good faith effort to reach an
agreement.”

III. The Superior Court’s Finding that Mother Unilaterally Removed
the Child from Arizona is Supported by the Record and Not
Clearly Erroneous.

¶23 Mother next argues that the court incorrectly found that she
had “unilaterally” removed the child from Arizona to Georgia in January
2024. She contends that this finding was prejudicial to her as it means that
she “wrongfully” removed the child, even though she had a court order
allowing her to do so. “We defer to the [superior] court’s factual findings
that are supported by the record and not clearly erroneous.” State v.
Rosengren, 199 Ariz. 112, 116, ¶ 9 (App. 2000). We do not reweigh the
evidence. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018).

6
 LINCOLN v. MCDANIEL
Decision of the Court

¶24 Mother conflates “unilateral” and “wrongful.” The court
stated that “the temporary orders [allowing relocation] . . . remain in place.”
Nothing in the court’s order characterizes Mother’s actions as wrongful or
indicates a lack of awareness that a valid relocation order existed.

¶25 “Unilateral” simply means: “done or undertaken by one
person or party.” Unilateral, Merriam-Webster, https://www.merriam-
webster.com/dictionary/unilateral (last visited December 4, 2025). Father
testified that in January of 2024, Mother “went and withdrew [the child]
from school. [Father] didn’t have any notification prior that that was going
to happen.” This supports the court’s finding that Mother unilaterally took
the child to Georgia, meaning Mother did so alone. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998) (“We will defer to the [superior] court’s
determination of witnesses’ credibility and the weight to give conflicting
evidence.”). Although Father’s consent was not needed because there were
temporary court orders allowing the relocation, the word “unilateral” is not
an incorrect finding given Father’s testimony.

¶26 Therefore, the court’s finding that Mother unilaterally
removed the child to Georgia in January of 2024 was supported by the
record and not clearly erroneous.

¶27 Mother makes a separate argument that Father presented no
evidence to support the court’s conclusions. However, Father testified at
the evidentiary hearing about what occurred in January 2024. Testimony is
evidence that the superior court can consider, see, e.g., Maricopa Cnty. Juv.
Action No. JV131701, 183 Ariz. 481, 482 n.1 (App. 1995) (“In a contested
hearing, testimony is evidence from a witness who is under oath and
subject to cross-examination.”), and we will not reweigh that evidence, see
Alma S., 245 Ariz. at 151, ¶ 18.

IV. The Superior Court Did Not Abuse its Discretion by Finding that
the Domestic Violence Was Not “Significant.”

¶28 Mother finally argues that the court should have found that
the domestic violence committed by Father was significant and therefore
Father could not have been awarded joint legal decision-making authority.
She then alternatively contends that Father could not have been awarded
joint legal decision-making authority because he failed to rebut the
presumption that it would be in the best interests of the child. See A.R.S. §
25-403.03(D). When domestic violence has occurred, but is not “significant,”
a rebuttable presumption is created that it is not in the child’s best interests
to award the offending parent joint or sole legal decision-making authority.

7
 LINCOLN v. MCDANIEL
Decision of the Court

A.R.S. § 25-403.03(D). We review the superior court’s legal decision-making
order for abuse of discretion. DeLuna v. Peitto, 247 Ariz. 420, 423, ¶ 9 (App.
2019).

¶29 When considering the best interests of the child in a contested
legal decision-making case, the court must determine whether domestic
violence has occurred, A.R.S. § 25-403(A)(8), and whether that domestic
violence was “significant,” A.R.S. § 25-403.03(A). See DeLuna, 247 Ariz. at
423, ¶ 11.

¶30 A.R.S. § 25-403.03(A) does not define what makes domestic
violence “significant.” Instead, the superior court has “the discretion to
weigh the evidence and determine the degree of the domestic violence’s
‘significance’ for the purpose of § 25-403.03(A).” DeLuna, 247 Ariz. at 424, ¶
15. Superior courts have previously used three factors in determining if the
domestic violence was “significant”: 1) seriousness of the domestic
violence, 2) frequency and pervasiveness of the domestic violence, and 3)
passage of time and the act’s impact. DeLuna, 247 Ariz. at 424, ¶ 15 n.6.
These factors are not from any Arizona court rule, case, or law, but we have
previously held these factors to be reasonable in determining significance.
Id.

¶31 In accordance with A.R.S. § 25-403.03(C), the court considered
findings from another court of competent jurisdiction, police reports, and
witness testimony to determine if domestic violence had occurred. A.R.S. §
25-403.03(C)(1), (2), (7). The court found that there had been four instances
of domestic violence, including an order of protection against Father from
2022, a 2015 police report where Father admitted to breaking a glass door
and cell phone, that Mother had a workplace threat plan in place against
Father, and that Father had attempted to withdraw money from her bank
account in 2022. The court concluded Father had committed “acts of
domestic violence against” Mother.

¶32 Mother argues that the evidence presented showed that the
domestic violence was “significant.” If it was “significant,” then Father
could not have been awarded joint legal decision-making authority. A.R.S.
§ 25-403.03(A).

¶33 The court found these acts were not “significant” domestic
violence within the meaning of A.R.S. § 25-403.03(A). The superior court
properly applied the DeLuna factors. See DeLuna, 247 Ariz. at 424, ¶ 15 n.6.
The court then concluded that the domestic violence was not “significant as
contemplated by [the] statute.” The record supports the superior court’s

8
 LINCOLN v. MCDANIEL
Decision of the Court

findings of no “significant” domestic violence and thus it did not abuse its
discretion.

¶34 When a superior court determines domestic violence
occurred, but “that it was not ‘significant,’ § 25-403.03(D) creates a
rebuttable presumption that it is contrary to the children’s best interests to
award sole or joint legal decision-making authority to the offending
parent.” Id. at 423, ¶ 12. The court must consider all six factors listed in
§ 25-403.03(E) and make specific findings on the record that there is
sufficient evidence to rebut the presumption. Id. Mother argues that there
was not sufficient evidence presented to support the court’s finding that the
presumption was rebutted.

¶35 However, the superior court made explicit findings on why
the presumption was rebutted by considering all factors in A.R.S. § 25-
403.03(E). The court found credible evidence was presented on two of the
six factors: (1) the child was thriving while living with Father and therefore
joint legal decision-making was in the child’s best interest, and (2) Father
had not committed domestic violence since 2022. See A.R.S. § 25-
403.03(E)(1), (6). The other four factors were inapplicable: whether Father
had completed a batterer’s prevention program, whether he had completed
alcohol or drug abuse counseling, whether he had completed a parenting
class, and whether he was restrained by a protective order that was granted
after a hearing. A.R.S. § 25-403.03(E)(2)–(5).

¶36 The record supports the superior court’s findings, and, thus,
the court did not abuse its discretion in finding that the presumption
against joint legal decision-making authority was rebutted.

V. Attorneys’ Fees.

¶37 Mother requests attorneys’ fees under ARCAP 21 and A.R.S.
§ 25-324. In our discretion, we decline to award Mother attorneys’ fees.

¶38 Father also requests attorneys’ fees on appeal, but he is not
eligible because he represented himself in this appeal. Munger Chadwick,
P.L.C. v. Farwest Dev. & Constr. of the Sw., LLC, 235 Ariz. 125, 126, ¶ 5 (App.
2014). We therefore deny his request for an award of fees on appeal.

¶39 Father also requests an award of the attorneys’ fees he
incurred in superior court even though the superior court denied that
request. Father needed to bring a cross-appeal of the superior court’s denial
of his attorneys’ fees. A cross-appeal is required when “the appellee seeks
to attack the judgment with a view of either enlarging his rights thereunder

9
 LINCOLN v. MCDANIEL
Decision of the Court

or lessening the rights of his adversary.” CNL Hotels & Resorts, Inc. v.
Maricopa Cnty., 230 Ariz. 21, 25, ¶ 20 (2012) (cleaned up). Requesting an
award of attorneys’ fees attacks the judgment and enlarges Father’s rights
under it. See Engel v. Landman, 221 Ariz. 504, 510, ¶ 17 (App. 2009) (“The
issues raised in Mother’s cross-appeal all seek an enlargement of her
rights . . . because she seeks to . . . obtain an award of attorneys’ fees.”).
Because no cross-appeal was taken, we cannot consider this argument. See
Hoffman v. Greenberg, 159 Ariz. 377, 380 (App. 1988) (“No cross-appeal was
taken from the [superior] court’s denial of attorney’s fees. We therefore
cannot consider this argument.”).

¶40 Father, as the prevailing party, is awarded taxable costs upon
compliance with ARCAP 21.

CONCLUSION

¶41 We affirm.

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

10