Chapter 40 - § 40.3 • CONTINUING EXCLUSIVE JURISDICTION

• Jurisdiction: Colorado

§ 40.3 • CONTINUING EXCLUSIVE JURISDICTION

§ 40.3.1—Generally

Like the UCCJEA and PKPA, under UIFSA and the Full Faith and Credit for Child Support Orders Act (FFCCSOA), any state with proper original jurisdiction that issues a child-related order retains continuing exclusive jurisdiction (or exclusive, continuing jurisdiction) so long as any party or the child at issue remains in the issuing state.²⁰ If all parties leave the issuing state, then the jurisdiction to modify any particular issue will be different, depending on the statutes that apply.²¹

There are certain key rules to keep in mind: (1) in custody cases, if anyone still lives in the state that issued the order, only the court in that state has the power to decide whether to exercise jurisdiction; and (2) in support cases, if anyone still lives in the state that issued the order, only the parties have the power to transfer or retain jurisdiction. The change of jurisdiction must be done specifically in accordance with the processes set forth in the applicable statutes, or subject matter jurisdiction will not lie here or in the new state.²²

If a judicial officer or attorney is trying to determine how to proceed in the enforcement or modification of an existing interstate domestic order, the following questions should be considered or asked of the parties when drafting or reviewing the pleadings, or at the initial hearing:

1) Was there a proper basis for entry of the initial order (is the existing order entitled to full faith and credit under the statutes)?²³ NOTE: The jurisdictional basis for entry of the order must not only be consistent with the UCCJEA, the UIFSA, and PKPA, and the FFCCSOA, but the same must pass constitutional muster under the U.S. and Colorado Constitutions.²⁴
2) Does any party to the original dispute (exclude the Child Support Enforcement Agency, but include grandparents or stepparents) still live in the state that issued the order? (C.R.S. § 14-5-205(a)(1); C.R.S. § 14-13-203.)
3) IF THE ANSWER TO THESE TWO QUESTIONS IS "YES," JURISDICTION CONTINUES IN THE ISSUING STATE UNLESS:

a) If the issue is child support, the party still living in the issuing state agrees with the other parties in writing to a transfer of jurisdiction to the state of residence of the other party or the child, and the written agreement is filed in the court of the issuing state prior to filing any request for modification in the new state. C.R.S. §§ 14-5-205(a)(2) and -611(a)(2); 28 U.S.C. §§ 1738B(e) and (i).²⁵
b) If the issue is custody, the parent complied with provisions of the existing custody order, C.R.S. §§ 14-13-207 and -208; the children have lost a significant connection with the issuing state; substantial evidence concerning the children is no longer available in the issuing state; the children have established significant connections with a new state; and the court in the issuing state relinquishes jurisdiction to the Colorado court pursuant to a pending motion. C.R.S. § 14-13-202(1)(a).²⁶
c) If the issue is custody, the issuing state relinquished jurisdiction in a prior proceeding.²⁷

If Colorado was not the issuing state and a party or the child still lives in the issuing state, unless the above standards are met, the issuing state's order can be registered in Colorado for enforcement only,²⁸ and only if proper jurisdiction for such registration exists. C.R.S. §§ 14-5-607(a)(1), 14-11-101, and 14-13-305.²⁹ This requirement was at issue in the 2012 case of In re Marriage of Brandt, 268 P.3d 406 (Colo. 2012). In Brandt, two state courts battled over where the mother "presently resided." The mother and father were divorced in Maryland, and shared joint custody of their son. The mother was thereafter sequentially stationed by the army in Texas, Iraq, and Texas. While the mother was in Iraq, the father had the child with him in Colorado, and the child was returned to the mother when she returned to Texas from Iraq. The mother was notified that she was being transferred back to Maryland, but she had not yet returned when the father registered the Maryland order in Colorado under the UCCJEA. The Maryland court found the mother continued to "presently reside" in Maryland, based on many facts reflecting that the mother had always maintained significant aspects of residency there. The Colorado judge found the mother did not "currently reside" in Maryland, and that Colorado now had jurisdiction to modify custody. The Colorado Supreme Court reversed the trial court, and set forth a procedure for determining whether all parties and/or children have left the issuing state:

1) The Colorado court must confer with the court in the issuing state and must hold a hearing in Colorado if the continuing residence of any party or child in the issuing state is contested.
2) The moving party bears the burden of proving that neither party nor the child "presently resides" in the issuing state. The supreme court clarified that "home state" is only a priority for the exercise of initial jurisdiction, not when determining whether the issuing state's jurisdiction continues.
3) A determination of where a person "presently resides" requires consideration of a totality of the circumstances, not just physical presence, and does not equate to "technical domicile."
4) The focus should be to continue the stability of custody orders, not to allow a parent to establish a new home state to gain an advantage whenever the other parent leaves the issuing state for vacation, a hospital stay, or military service.

Id. at 413-14. The supreme court remanded the case to the trial court to conduct further hearings and further communications with the Maryland court in accordance with its opinion.

Remember that there is no statute that may be used for actions filed after July 1, 2000, to register a child custody order in Colorado, except the UCCJEA. C.R.S. § 14-11-101(4). If Colorado was the issuing state for the custody or support order and a party to the dispute still resides here, actions must be filed in Colorado until jurisdiction is relinquished by Colorado in accordance with the various statutes.

This requirement is illustrated by In re Marriage of Pritchett, 80 P.3d 918 (Colo. App. 2003).³⁰ In Pritchett, the parties were granted joint custody in their 1996 Colorado divorce, but, in 1998, the Colorado court gave the mother sole custody when the father moved to Oregon. In 1999, the mother moved with the children to North Dakota. In 2001, the father filed a motion for contempt in Colorado against the mother regarding parenting time. The mother was served in North Dakota and promptly filed a request for North Dakota to take jurisdiction over parental responsibility issues because no one lived in Colorado. The courts conferred, and the Colorado court chose to retain jurisdiction over the pending contempt citation only. A motion to modify parenting time and for contempt against the father was then filed by the mother in North Dakota. The father filed a second motion for contempt in Colorado against the mother. While the North Dakota matters were pending, the Colorado court heard the two Colorado contempt motions. The first contempt motion was dismissed, but the mother was found guilty in the second contempt hearing, and the court ordered sanctions and attorney fees. The court of appeals held that the Colorado court lacked subject matter jurisdiction to hear the second contempt motion when it relinquished jurisdiction to North Dakota. To find otherwise would render invalid the primary tenet of the UCCJEA: that only one state may be exercising jurisdiction over a child at any given time. The court held that the Colorado contempt order was void, and it was vacated.

Despite the UCCJEA's clear...