Parenting Jurisdiction & the UCCJEA

Parenting Jurisdiction & the UCCJEA

By Carl O. Graham

child map, jurisdiction

Colorado has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at C.R.S. 14-13-101, et seq. The act sets forth the requirements in order for Colorado enter an initial custody order, or to modify parenting orders. It does not apply to adoption proceedings. C.R.S. 14-13-103.

The official comment to C.R.S. 14-13-201 states: “It should also be noted that since jurisdiction to make a child custody determination is subject matter jurisdiction, an agreement of the parties to confer jurisdiction on a court that would not otherwise have jurisdiction under this Act is ineffective.”

What this means is that if Colorado lacks subject matter jurisdiction to enter a parenting order, courts cannot enter one, even if the parents agree Colorado should have jurisdiction. And as this is subject matter jurisdiction, there is no need to have personal jurisdiction over the parents or child in order to enter the order - indeed, if the home state requirements are meet, Colorado could enter custody orders even if neither the parent nor the child are physically present in Colorado. C.R.S. 14-13-201(3).

Child Custody vs Divorce vs Child Support

Ready to be confused? Just because Colorado has jurisdiction to enter a divorce, it does not mean the court can enter parenting orders. Obtaining a dissolution in Colorado requires just one spouse to have lived here for 91 days - if a couple has lived here 4 months, then files for divorce, they meet the 91 day requirement for a divorce, but not the 182-day requirement for child custody jurisdiction.

Or, to complicate matters more, a dual military couple could live in Colorado with their children, but neither of them are Colorado residents. So unless one parent changed his/her residence, Colorado would enter custody orders while another state dissolves the marriage.

Similarly, just because Colorado is the home state of the child and one parent, entering custody orders pursuant to the UCCJEA does not necessarily mean it can enter child support orders. The Uniform Interstate Family Support Act (UIFSA) requires personal jurisdiction over the payor before ordering child support. LINK.

The practical effect for families that have moved around (particularly the military) is that while they may have courts in two different states exercising jurisdiction over their family law matters - one state for parenting, and a different state for the financial issues.

Definitions

The statute contains several definitions - the most important being:

Child is “an individual who has not attained eighteen years of age.” C.R.S. 14-13-102(2). This may seem like common sense, but some courts have tried to enter custody orders for 18 year-olds.

Home State is the state where the child has lived with a parent or person acting as a parent for at least 182 days prior to commencing a child-custody proceeding. If the child is under six months of age, it is where the child has lived from birth with a parent or acting parent. C.R.S. 14-13-102(7)(a).

Person Acting as a Parent is someone with legal custody of the child who has had physical custody for at least 182 days within one year of commencing a child custody proceeding. C.R.S. 14-13-102(13).

Jurisdiction to Enter Initial Child Custody Order

If no parenting order has been issued previously by any state, then Colorado has jurisdiction to enter a parenting order if one of the following factors are met:

  • Colorado is the child’s home state. C.R.S. 14-13-201(1)(a).
  • Colorado was the child’s home state within 182 days prior to commencing the action, and a parent or person acting as continues to live in Colorado. C.R.S. 14-13-201(1)(a).
  • No other state has jurisdiction, or the court in a state with jurisdiction has declined to exercise jurisdiction, AND (1) the child and a parent or person acting as a parent have a significant connection to Colorado other than physical presence, and “substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.” C.R.S. 14-13-201(1)(b).
  • Courts of all states with jurisdiction have deferred the exercise of jurisdiction to Colorado on the grounds that Colorado is a more convenient forum. C.R.S. 14-13-201(1)(c).
  • No other state has jurisdiction. C.R.S. 14-13-201(1)(d).

Exclusive Continuing Jurisdiction

Once Colorado has entered a child custody order, the requirements to keep jurisdiction are more relaxed. Specifically, Colorado retains exclusive jurisdiction to modify its own orders until:

  • A Colorado court has determined that neither the child, the parents, nor a person acting as a parent has a significant connection to the state, and substantial evidence pertaining to the child is no longer available in Colorado. C.R.S. 14-13-202(1)(a)
  • A court in Colorado or another state determines that the child, parents, and any person acting as a parent do not presently reside in Colorado. C.R.S. 14-13-202(1)(b).

If Colorado no longer has exclusive, continuing jurisdiction, the court may only modify a parenting order if Colorado would have jurisdiction to enter an initial custody determination, as set forth above. C.R.S. 14-13-202(2).

By way of example, assume that after Colorado enters a custody order, the mother and child move, and have lived in Texas for a year. As long as the Father is here, Colorado courts have exclusive jurisdiction to modify custody even though the the state would not have initial custody jurisdiction since the child no longer lives here.

No other state can take away Colorado’s exclusive jurisdiction. If Colorado has exclusive continuing jurisdiction, then only Colorado can choose to give up its jurisdiction - either by finding that the child and parents no longer have a significant connection, or that another state would be a more appropriate forum, as discussed below.

What happens if, after a custody order enters, everyone moves away from Colorado, and the non-custodial parent then returns? “Exclusive, continuing jurisdiction is not reestablished if, after the child, the parents, and all persons acting as parents leave the State, the non-custodial parent returns.” Official Comment to C.R.S. 14-13-202.

Finally, moving away once the case starts does not deprive Colorado of jurisdiction. “Jurisdiction attaches at the commencement of a proceeding. If State A had jurisdiction under this section at the time a modification proceeding was commenced there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding.” Official Comment to C.R.S. 14-13-202.

Jurisdiction to Modify Another State’s Custody Determination

The UCCJEA provision giving Colorado exclusive jurisdiction to modify its own custody orders applies both ways - once another state has entered parenting orders, that state retains exclusive jurisdiction.

Under 14-13-203, if Colorado would have had initial custody jurisdiction, but another state has previously entered a parenting order, Colorado can only modify that order if one of the following conditions is met:

  1. The other state court determines it no longer has exclusive, continuing jurisdiction. C.R.S. 14-13-203(1)(a).
  2. The other state court decides that Colorado is a more appropriate forum. C.R.S. 14-13-203(1)(a).
  3. The other state court determines that neither the child, the parents, or anyone acting as a parent lives in the other state. C.R.S. 14-13-203(1)(b).
  4. Colorado determines that neither the child, the parents, or anyone acting as parent lives in the other state. C.R.S. 14-13-203(1)(b).

As indicated by the above, the only way Colorado can unilaterally “take” jurisdiction from another state is if a Colorado court determines that no one lives in the other state any longer. Otherwise, the other state retains exclusive, continuing jurisdiction, and only that state’s court can decide to give up jurisdiction.

Temporary Emergency Jurisdiction

“A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” C.R.S. 14-13-204(1).

The UCCJEA allows Colorado to step in with temporary emergency jurisdiction to protect a child inside the state, but as the name implies, this is only temporary, until the state which actually has jurisdiction can act. The Colorado order is not a permanent custody order - it is a temporary order. Any order entered in Colorado expires upon the state which actually has UCCJEA jurisdiction stepping in. The only exception that would allow this temporary order to become permanent would be if there was never a custody action in another state, and after issuance of the temporary emergency order from Colorado no state with jurisdiction steps in with an order of its own.

Think of this as akin to a temporary protection order, and not a custody order. It is a rarely-used provision that the author has only encountered once or twice in his career. Indeed, if another state already has jurisdiction, that means there is an existing case file, and it is hard to conceive how it would be quicker to file a new case in Colorado rather than returning to that original court.

The purpose of an emergency temporary order is not to facilitate “forum shopping” - trying to get your case in front of a Colorado judge instead of your original judge. And seeking one may hurt in the long run - the judge with jurisdiction may perceive this as an end-run around her authority, and since any Colorado order is only temporary, you end up in front of a judge whose toes you just stepped on!

If there has never been a child custody determination, you can safely ask Colorado to step in temporarily, but if there is already a court with jurisdiction, a concerned parent is almost always better off asking the judge with jurisdiction for orders instead of seeking a temporary emergency order from Colorado.

Inconvenient Forum

Even though Colorado, or another state, has jurisdiction to enter custody orders under the UCCJEA, it does not necessarily make that state the most appropriate forum for parenting litigation. C.R.S. 14-13-207(2) provides the means by which a state with jurisdiction can decline to exercise it. Factors include:

  1. Whether there has been domestic violence, and if so, which state can best protect the child.
  2. Length of time the child has lived in the state
  3. Distance between states
  4. Parties’ financial circumstances
  5. Any agreements between the parties as to jurisdiction
  6. Location of evidence required to resolve parenting issues
  7. Ability of each state to decide the issue
  8. Each state’s familiarization with the facts & issues of the case.

Note that this provision only allows the state with jurisdiction to decide whether to “transfer” it to the other state (technically, it is not transferred, but the court is deferring its jurisdiction until the other state steps in). The other state may not decide on its own that it is a more convenient forum, and take away the original state’s jurisdiction.

Do You Need a Child Custody Lawyer in Colorado Springs?

The family law attorneys at Graham.Law have years of experience helping clients through the Colorado legal system. We know Colorado family laws, inside and out, from divorce to legal separation, from annulment to military divorce issues. And we understand parenting and child custody. For more information about our El Paso County family law firm, click on:

Colorado family law is all we do. Period.

Tag: 
Parenting & Custody
Secondary Tag: 
Jurisdiction