Interstate Family Law Jurisdiction: Simplifying Complex Questions

• Publication year: 2002
• Pages: 77

31 Colo.Law. 77 Colorado Lawyer 2002.

2002, September, Pg. 77. Interstate Family Law Jurisdiction: Simplifying Complex Questions

---

77

Vol. 31, No. 9, Pg. 77

The Colorado Lawyer
September 2002
Vol. 31, No. 9 [Page 77]

Specialty Law Columns
Family Law Newsletter
Interstate Family Law Jurisdiction: Simplifying Complex Questions
by Angela R. Arkin

This column is sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles are intended to focus on practice tips and discussions of current issues within the realm of family law. New column authors are welcomed

Column Editors:
Gretchen Aultman, Denver, of Burns, Wall, Smith &amp Mueller, P.C. - (303) 830-7000, gaultman@bwsm.com; Marie Avery Moses, a domestic relations attorney - (720) 273-2103 marmoses@msn.com

About The Author:
This month's article was written by Angela R. Arkin, Englewood, a District Court Judge in the Eighteenth Judicial District - ararkin@yahoo.com.

This article discusses the jurisdictional provisions of various federal and state laws that concern certain family law matters in Colorado and examines the differences among those provisions.

Jurisdictional questions have plagued parties and family law practitioners for years. For example, does Colorado have jurisdiction in a given dissolution of marriage, paternity, parental responsibility, or support case? If so, what issues can the court decide? Does exclusive jurisdiction continue in Colorado or may another state modify a Colorado order? When may Colorado modify or enforce another state's order?

There is a complex interplay among long-arm statutes and federal and state custody and support jurisdiction statutes. The statutes governing interstate jurisdiction have undergone five major modifications since October 20, 1994.1 However, this "alphabet soup" of jurisdictional laws can be deciphered using certain basic principles common to all jurisdiction statutes and by understanding certain key differences among them.2

The peril to attorneys who give their clients incorrect advice about jurisdiction should not be understated - it is significant. Clients who violate child support and parental responsibility orders can be subject to felony and contempt charges. Attorneys who advise them without understanding the law can be subject to discipline.3

This article provides a structure within which practitioners can answer complex interstate jurisdictional questions, even before actions are filed before the court. The article addresses jurisdictional issues as they relate to domestic cases in Colorado under the Uniform Interstate Family Support Act ("UIFSA"), the Parental Kidnapping Prevention Act ("PKPA"), the Full Faith and Credit for Child Support Orders Act ("FFCCSOA"), and the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA").

Jurisdiction in Initial Interstate Matters

Personal jurisdiction gives the court legal authority over the respondent (person).4 Subject matter jurisdiction concerns the court's authority to deal with issues in cases in which it renders judgment.5 Most jurisdictional statutes require the court to have both personal and subject matter jurisdiction. However, in certain situations, especially cases involving children, only subject matter jurisdiction is necessary.

Personal jurisdiction initially is acquired by service inside or outside the state as otherwise specified by Colorado Rules of Civil Procedure ("C.R.C.P.") 4. So-called "snatch and serve" service on an out-of-state resident sojourning in Colorado confers full personal jurisdiction over the responding party.6 A waiver and acceptance of service signed by the responding party also confers personal jurisdiction, and subjects him or her to the court's jurisdiction.7

Personal service outside the state gives the court limited jurisdiction over parties, children, and property as defined by statute.8 Service by publication is governed by statute in matters brought under the Uniform Dissolution of Marriage Act ("UDMA"), and differs from the requirements for publication found in C.R.C.P. 4(h).9

Dissolution of Marriage

For the district courts of Colorado to exercise jurisdiction over the marital relationship, one of the parties must have been domiciled in Colorado for at least ninety days prior to the commencement of the proceeding.10 If one party satisfies the domiciliary requirement and the court obtains personal jurisdiction over the person of the other party, the court has jurisdiction under the UDMA11 to grant complete relief.12

If the nonresident spouse is served by publication, the court has in rem jurisdiction over the status of the marriage.13 The court may make disposition of marital property located in Colorado14 and may determine parental responsibility under the UCCJEA.

If the nonresident spouse is served under the domestic relations long-arm statute,15 the court may determine support and maintenance to children and spouses in any action for dissolution of marriage, legal separation, declaration of invalidity of marriage, or support of children. As such, the court may divide property within the state of Colorado and may allocate parental responsibility, if appropriate, under the UCCJEA.

Jurisdiction for dissolution of marriage is established under the long-arm statute by maintenance of a matrimonial domicile within the state. However, if one party leaves the state, jurisdiction remains in Colorado under the long-arm statute only if one of the parties to the marriage continues without interruption to be domiciled within the state.

Paternity and Support

The possibility that conception could have occurred in Colorado provides a basis for state courts to exercise jurisdiction in determining the parentage of a child. In such circumstances, a verified petition must be filed pursuant to the Uniform Parentage Act16 or the UIFSA.17

One of the parties (to the conception), or the child, must be a resident of Colorado at the time the action is filed to give the state court subject matter jurisdiction to: (1) determine parentage; (2) order modification of the child's birth certificate; (3) establish the duty of child support; (4) recover a child support debt; (5) order payment of the mother's reasonable expenses of pregnancy and confinement; and (6) provide for medical insurance for the child.

Under the UIFSA's long-arm statute,18 Colorado courts also may obtain jurisdiction to establish a spousal support or child support order. The UIFSA allows Colorado courts to obtain jurisdiction over a nonresident if the individual: (1) is personally served with a summons in Colorado; (2) enters a general appearance or files a responsive pleading; (3) resided with the child in Colorado or resided in Colorado while supporting the child in the state; (4) acted in a way that resulted in the child residing in Colorado; or (5) acted in any other way that would allow the exercise of personal jurisdiction that is consistent with the Colorado or U.S. Constitution.

If the obligor has no minimum contacts with Colorado, and does not wish to submit to jurisdiction in the state to establish support and paternity, the UIFSA allows the case to be filed in the jurisdiction where the respondent resides. In that situation, the responding state (rather than Colorado) would be the issuing state for paternity and support orders.19

Parental Responsibility

The jurisdictional concept of the UCCJEA20 and PKPA21 is "child-state" jurisdiction. Such child-state jurisdiction involves only jurisdiction over the subject matter (the child) and usually arises after the child has resided in the "home state" for more than six months. Personal jurisdiction, therefore, is irrelevant and...