Waking the Dormant Pkpa in Colorado
| Jurisdiction | United States,Federal |
| Citation | Vol. 10 No. 1992 Pg. 2209 |
| Pages | 2209 |
| Publication year | 1992 |
1992, October, Pg. 2209. Waking the Dormant PKPA in Colorado
Reported opinions of the Colorado appellate courts have never mentioned the Parental Kidnapping Prevention Act ("PKPA"), the federal statute that for twelve years has governed jurisdiction and enforcement of orders in interstate child custody cases.(fn1) This is remarkable because Colorado courts have decided numerous cases under the Uniform Child Custody Jurisdiction Act ("UCCJA"), a uniform statute on the same subject.(fn2) Like the UCCJA, the PKPA applies to every child custody case, whether or not any kidnapping has occurred. This article explains how application of the PKPA can be effective in Colorado courts.
If Colorado attorneys cite the PKPA, the courts will be forced, for two reasons, to make different jurisdictional rulings than they now do in many cases. The first reason, not further discussed in this article, is that the PKPA differs from the UCCJA in two crucial respects. The PKPA, unlike the UCCJA, embodies a limited preference for "home state" jurisdiction over "significant connection" jurisdiction for the first litigation of a child's custody. As to interstate modification of a decree, under the UCCJA the law of the new forum determines whether the prior forum still has jurisdiction. In contrast, the PKPA leaves this question to the law of the old forum.
The second reason, further explained below, is that Colorado courts have often rendered decisions that appear inconsistent with certain UCCJA provisions very similar to key language in the PKPA. These courts will not be free to extend any erroneous UCCJA precedents to the corresponding provisions of the federal PKPA. If they did so, attorneys could seek reversal by the U.S. Supreme Court on certiorari.
A ruling as to custody jurisdiction can influence the outcome of a case on its merits, for several reasons. For example, problems of expense and travel often impede one party's litigation away from home,(fn3) courts sometimes favor a local litigant,(fn4) and the substantive(fn5) and procedural(fn6) law may be more favorable in one state than in another. Thus, it is important for attorneys to seek favorable rulings on jurisdiction. To help them do so, this article focuses on certain Colorado precedents under the UCCJA and explains how attorneys can obtain jurisdictional rulings contrary to those precedents by relying on the PKPA.
Custody jurisdiction exists in Colorado if the facts fit any of four bases of jurisdiction found in CRS § 14--13--104 under the UCCJA ("home state," "significant connection," "emergency" and "vacuum"). However, even if jurisdiction exists, a Colorado court is sometimes forbidden to exercise it.(fn7) One of the bars to the exercise of jurisdiction is found in CRS § 14--13--115, which expressly prohibits modification of a decree of another state that still has jurisdiction to modify its own decree. Despite this provision, a number of Colorado decisions have allowed modification of decrees of other states even though the other states still had jurisdiction.
Under the UCCJA. In the least extreme and most defensible of these cases,
Colorado courts have approved only a temporary modification of the foreign decree, and only on showings that (1) the child was present in Colorado and (2) an emergency existed.(fn8) Three criticisms of these cases can be expressed.
First, CRS § 14--13--115, on its face, bars modification whenever the original state still has jurisdiction. It does not contain an exception for temporary orders or for jurisdiction based on an emergency, any more than for jurisdiction based, say, on acquiring a new home state.
Second, the official Comment to CRS § 14--13--104, where the "emergency" provision is found, states that it "is subject to additional restrictions contained in" two other sections, including the section enacted as CRS § 14--13--115.(fn9)
Third, such an exception could invite abuse and does not...
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