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Denver Custody: An Exception to the “Exclusive, Continuing Jurisdiction” Provision of the U.C.C.J.E.A

US-Map-300x225By:  Curtis Wiberg

Every state has adopted what is known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). In cases where parents may reside in different states, this uniform act helps establish which state’s courts have jurisdiction to make determinations affecting the custody of the parties’ minor children.

Once one state’s jurisdiction has been established and custody orders have been entered, C.R.S. § 14-13-202 provides that that state shall have “exclusive, continuing jurisdiction,”  unless….    Generally, as long as one parent remains in the state where the initial custody proceeding occurred, that state shall retain jurisdiction to hear any future custody or visitation issues concerning the minor children.  This is a basic, core provision of the UCCJEA which, in some cases, becomes impractical.

Sometimes, after the initial custody determination as been made, one party might relocate out of the original state, with the minor children, with permission from the other party or the court.  Once in this new state, children will have different schools, different pediatricians, different dentists, and different day care.  Over time, witnesses most familiar with the day-to-day circumstances of the children will be in the new state, as opposed to the state where the initial custody determination was made.  If the other parent remains in the issuing state, the relocating parenting is presumably stuck litigating future issues, such as a modification of parenting time, in that state.

Fortunately, the UCCJEA contains an important exception to the “exclusive, continuing jurisdiction” rule applicable to the circumstances as described above. The exception derives from the long-standing rules related to venue and the doctrine of forum non conveniens, also known as inconvenient forum. Venue rules relate to jurisdiction and allow state courts, in some instances, to determine which county within a state is the most appropriate to hear a case.  C.R.C.P 98, the Colorado court rule that determines venue, requires a court to determine the location of relative witnesses and balance the convenience/burden between the parties when determining whether to change the location (county) for the court proceeding.

A similar “convenience” provision has since been incorporated into the UCCJEA.  Specifically, C.R.S. § 14-13-207 indicates that a court (state) that initially had jurisdiction to make the underlying custody determination may be required to consider whether it remains a convenient forum, and to specifically make findings concerning:

  1. Whether domestic violence or domestic abuse has occurred and is likely to continue in the future and which state could best protect the parties and the child;
  2. The length of time the child has resided outside the original state;
  3. The distance between the court in this state and the court in the state that would assume jurisdiction;
  4. The relative financial circumstances of the parties;
  5. Any agreement of the parties as to which state should assume jurisdiction;
  6. The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
  7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
  8. The familiarity of the court of each state with the facts and issues in the pending litigation.

Furthermore, the statutory section mandating exclusive, continuing jurisdiction in the state of original jurisdiction specifically excepts the situation where another state might be a more convenient forum.  See, C.R.S. § 14-13-202 (1)(a).

In essence, the two partially dueling provisions of the UCCJEA require the court of original jurisdiction to engage in a balancing act, so to speak, in which it seemingly balances the rights of the the parent remaining in the original state versus the rights of the parent who has moved away to litigate any future custody matters in the new state.   Realistically, what it balances is whether it is time, in a pragmatic sense, to have jurisdiction follow the child.  The primary tenet of the UCCJEA is rooted in is the notion that jurisdiction is rooted in the location of the child and his or her “home state.”

What’s important to note from C.R.S. § 14-10-207 is that if Colorado was the original jurisdiction of your custody case, and you and the minor children have relocated to a different state, it is not automatic that jurisdiction for custody purposes moves with you and the child.  Rather, you will need to request the original, Colorado court to divest itself of, or give up, jurisdiction to the new state based on Colorado no longer being a “convenient forum.”    There is no bright line rule as to the length of time you should wait to make such a request.   At an absolute minimum, it should be the the roughly 6 month period required for the new state to become the child’s “home state.”   As a Denver custody attorney, with years of practicing under my belt, my legal instincts generally tell me the waiting period should be more like 2 years.   The determination made by the court will not be based solely on length of time and can also tie into things like the frequency of parenting time for the parent remaining in Colorado or the specific needs of the child.   The facts in each case will differ.

We commonly get calls from people who are in the situation of having been here for a few months, or years, with their kids, who automatically presume they can just file something with the Colorado court in their county to bring the case here.   We are forced to tell them they must take action in their original state first before we can register the case here for modification purposes.   Conversely, we have also helped clients with getting Colorado to give up jurisdiction.    From time to time, people do call presuming that because they have moved to Colorado, with the child and other parent remaining in the issuing state, that Colorado can somehow accept custody modification jurisdiction, which it absolutely cannot.

Interstate custody issues can be intricate, with attorneys in different states having different interpretations of the UCCJEA.  In some instance, attorneys in other, original states will even tell their clients that they “need to file in Colorado,” when in fact Colorado cannot accept the case until steps are taken in that original state.

If you are dealing with changing state jurisdiction in your custody or visitation case, talk to an attorney who knows what they are doing.  They may tell you you need to take action in both states to accomplish your goal of changing jurisdiction.

 

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