DENVER CUSTODY: A TALE OF TWO CASES

October 7, 2012

With many years as a custody lawyer in Denver under my belt, I have come to draw certain assumptions about the law, the court system, and how things work. Most family law attorneys use those assumptions, which are formulated with experience, legal knowledge, and a keen sense of each court, to guide them in their representation of their clients. However, as in any profession, from time to time, an attorney may hear of situations or outcomes that go against what those years of experience tell them.

In the last two weeks, I have heard of two similar Denver area custody cases, in two metropolitan area counties, with almost idential facts and two widely different outcomes. Though one might think the law is the law and the facts are the facts, the reality is that each case can be decided based solely on the specific court or judge's beliefs, perspective, and perception of the law. Though this is a fact I have known for sometime, I still try to believe that the law is the law and the facts are the facts. I guess I am the eternal optimist. I have written at least one blog posting regardng the subjectivity a court can bring to a family law case. Below, I will use the fact patterns of the two cases I heard about to give a real life example to my readers.

Before getting into each fact pattern, I will let you know that the court's, counties, and judges will not be divulged. Likewise, specifics will be altered. The gist of each scenario will not.

In the first case I heard about, the father of a child had left the state of Colorado with that child, roughly 5 months before the case was filed, and had taken the child to California. In that case, the mother had filed a Denver area custody case around the time of the fifth month. Along with the filing of the petition, the mother also filed an emergency motion indicating that father had fled with the child, concealed his whereabouts, and denied any contact. In that case, the court granted mother's emergency motion and entered an order granting mother custody and authorizing the issuance of papers for mother to retrieve the child, with the assistance of law enforcement, in California. Mother's emergency motion indicated that the child was in "emotional danger" based on being removed from Colorado and her presence. In this instance, the court granted the motion "ex parte," meaning without having heard from father. Father, upon being served with the petition and the motion, roughly two weeks later, contacted an attorney to deal with the issue. As part of the process, father filed an emergency motion of his own, indicating that he had left Colorado based on a pattern of domestic violence, had provided mother information where he was, has received mail from mother during the time in question, and had in no way concealed his presence. In scenario one, the court did not care and ordered the child returned to Colorado and mother's temporary custody.

In the other case, in a completely different county, the father left Colorado with the children, for New York, roughly a week before mother filed her custody case. In addition to the filing of the petition, mother filed an emergency motion, which contained similar language to the emergency motion filed in scenario one. In that emergency motion, mother sought an emergency order, ex parte relief, and orders regarding return of the children to Colorado. In scenario two, mother's motion was initially denied becasue father was not yet served with any of the court pleadings. In scenario two, mother filed a second motion upon father being served. In scenario two, the court did not grant mother's emergency custody motion, but rather indicated she could set the matter for a forthwith hearing roughly a month down the road.

The perplexing aspect of the analysis of these two cases is that in case one, where the emergency relief was granted, the court, with facts much less favorable to the parent seeking emergency relief, such as the father and child being gone from Colorado for nearly half a year, granted emergency custody to the mother. In case two, in which father and children had just left Colorado, the court essentially declined to do anything. From my professional perspective, the parent in scenario one should have been allowed to stay out of state, with the child, and the parent in scenario two, having just left, should have been required to return with the children on an emergency basis.

Under various statutory sections, whether the Uniform Child Custody Jurisdiction and Enforcement Act, 14-13-101 et. Seq., the Uniform Parental Abduction Prevention Act, 14-13.5-101 et. Seq., or simply under standards set forth in the general divorce/custody sections, the court in each case had the authority to act or not. Each case was decided by a judge in a completely opposite manner, with primarily similar facts, yet with significant variations as to how long children had been gone and the specifics regarding other circumstances not necessarily relevant to this analysis.

It is not my place, nor intent, to criticize either court, in either case. At the same time, the conclusions and use of the judges' discretion were perplexing. In conclusion, what people, including Denver custody attorneys, need to keep in mind is that judges are charged with a great degree of discretion in formulating their orders, which are all supposed to be in the "best interest" of the child. As judges are human, they will have their own viewpoints on the world, the facts, and the law. When entering into a court case, one can never presume anything. Your attorney goes by norms. Sometimes the norm does not apply. In such instances, a party may be forced to file an appeal. Appeals are based on judicial error, whether substantive or procedural. Appeals are expensive and most people cannot afford to do so. I cannot say that judicial error was committed in either case. Rather, significant uses of discretion occurred, nothing more.

My intent is not to alarm readers, but rather, to let them know each court and each outcome can be vastly different. Something to keep in mind when starting your custody case.