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International Considerations for Child Custody and Divorce Cases

globe-1419902By: Sarah T. McCain

When you commence either a divorce case or a child custody case in Colorado, you will inevitably hear the word “jurisdiction.” Though this term is mentioned in more detail in other blog posts, in summary, the term is referring to personal and subject matter jurisdiction. To acquire personal jurisdiction in Colorado, there must be service in Colorado, the other party agrees to have their matter heard in Colorado, or long arm jurisdiction applies.

To acquire subject matter jurisdiction in a divorce, the court must find that one or both of the spouses has lived in the state for a period of 91 days prior to the case being filed. This is pursuant to C.R.S. 14-10-106 and 107. Jurisdiction for child custody cases in Colorado and most states (Massachusetts is excluded) is determined by the Uniform Child Custody Jurisdiction and Enforcement Act found in C.R.S. 14-13-101. This is most often referred to as the “UCCJEA.” For custody cases, only subject matter jurisdiction is necessary, which is acquired when a child resides in Colorado for 182 days, or more.  The citizenship or immigration status of a party is generally not relevant to determining jurisdiction in either a divorce or a custody case.  When dealing with international child custody issues and a child taken out of the U.S., both state and federal laws may be needed to get that child back. 

In a child custody matter or a divorce that includes custody considerations, the UCCJEA will be used to determine where the appropriate forum is to decide important matters such as where the child(ren) will live and who will make decisions concerning their well-being. The UCCJEA is applied when there are multiple states or even countries involved. Much as when the court is applying this standard to two different states, the court will apply this same standard to a situation where one party may be located in Colorado and the other parent is located in a foreign country. Under the UCCJEA, that foreign country is given the same consideration as though it were simply another state. Under this rule, 182 days is an important number to keep in mind as that number will determine the “home state” of the child(ren) in most cases. For example, if you, the other parent, and the minor child are all residing in Colorado and that other parent then decides to move to England with the child, Colorado would lose jurisdiction after the child has been gone for 182, unless a case is filed in Colorado prior to that time. Therefore, if you believe that the party is looking to move out of the Country with your child, you need to file a case quickly.  Once a case is filed and they are served, a temporary injunction goes into effect, which prohibits their taking the minor child out of Colorado.

Now, not every parent follows that temporary injunction, sometimes requiring emergency action to be taken.  It should be noted that Colorado has the ability to take emergency temporary jurisdiction in some cases, even if the 6 month (182 day) mark has not been met or when no significant connections exist in another state. This is a difficult standard to meet and caution must be used when asking the court to take emergency jurisdiction. The court will look at instances of child abuse or neglect in determining whether this form of jurisdiction is appropriate. Furthermore, using the brief example above, if you believe that the other parent may be planning to take the minor child with them to England without consent and that such relocation is not in the child’s best interest, you have the ability to ask for child abduction prevention measures to be instituted. Colorado must first have jurisdiction to enter orders and the court must find that there is a credible risk of abduction.  When putting together an abduction prevention motion, it’s important to be as detailed as possible as to the risk you feel is present. Simply stating that you believe the other parent will return to their home country or will remove the child to a foreign country is not enough. This means that detailing the actions of the other parent is essential, such as looking at their housing situation and whether they have terminated employment. Are they renewing passports or obtaining a passport for the minor child? You will also want to include whether that other parent is from another country, do they speak the language, and do they still have family in that country. Finally, look into the country in which you believe they intend on relocating to and determine whether that country is part of the Hague Convention, which will impact international child abduction issues. If a country included under The Hague Convention receives the appropriate notice, the court in that country is not allowed to weigh the merits of custody. 

Finally, when you have child custody orders from another country and you move to Colorado, you may wonder whether those orders remain in effect. The simple answer is, “yes.” You do need to follow the appropriate steps in terms of registration of the foreign order in Colorado for either enforcement, modification, or both before the court may take action. Additionally, the court in Colorado will review those foreign orders to determine whether the foreign orders follow the same standards as established in the UCCJEA. In a rare exception, the court may decline to accept the orders should they believe that the country which established the order has custody laws which are not in line with standard human rights. This would certainly be the exception to the norm and not the standard.  

My next blog post will focus on measures to get your child back should he or she be taken to a foreign country, or kept their, against your rights and wishes.

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