Pacifier Next to Gavel on Judge's Bench

Can a father file a case to establish Colorado paternity before the child is actually born? The Colorado Court of Appeals recently approved of that practice, however to the extent the father’s goal is to try to get parenting set up before birth, that is not a realistic goal. And with this case, we are reminded that a court may have jurisdiction for one purpose, in this case to establish who a child’s parent was, without having jurisdiction for another purpose, such as entering parenting orders.

In G.C.C.M., the child was conceived in Colorado, and while the mother was still pregnant with the child, living in Colorado Springs, the father initiated a Colorado paternity proceeding, seeking both a determination that he was the child’s father, and to establish decision-making authority and parenting time.

Before the child’s birth, however, the magistrate issued a Colorado paternity ruling, declaring the father to be the child’s legal father. However, also before birth, the mother moved to New Hampshire, where the child was eventually born.

The parents stipulated to a parenting plan which gave the father parenting time in New Hampshire. However, before the final orders hearing, the mother moved to dismiss the case, due to a lack of subject matter jurisdiction. Her argument was that since the child was born in New Hampshire, and had never lived here, New Hampshire was the child’s home state under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and only that state had jurisdiction over parenting and child custody matters. (For a detailed discussion of this issue, see our Parenting Jurisdiction and the UCCJEA article in the Colorado Family Law Guide).

The Colorado magistrate found that since it had authority to determine paternity before the child’s birth, that jurisdiction included the authority to enter parenting orders. And such authority was not lost when the mother moved away while still pregnant.

The mother requested review of the magistrate decision by a district court judge, who upheld Colorado paternity jurisdiction and the finding of paternity, but overturned the child custody determination on the basis that the Uniform Parentage Act did not provide parenting jurisdiction, nor does it restrain a pregnant parent from leaving the state.

The father appealed.

Colorado Paternity Case Can Be Filed Before Birth

The Uniform Parentage Act explicitly authorizes a parent to file a paternity case before the child is actually born: “Proceedings under this article may be commenced prior to the birth of a child.” C.R.S. 19-4-105.5(3). Thus, the fact that the Colorado paternity proceeding commenced while the mother was still pregnant was not an issue in the case. G.C.C.M., ¶ 13

Uniform Parentage Act Allows Child Custody Orders

The real issue in contention, however, was whether the fact that there was Colorado paternity jurisdiction meant that the court could also adjudicate child custody issues. Typically, when a paternity case is initiated, child custody jurisdiction is not in dispute, and the court addresses both (1) whom the child’s legal parents are, and (2) child custody issues.

The Uniform Parentage Act appears to contemplate that a Colorado paternity proceeding can include an allocation of parental responsibilities in the same proceeding. Multiple provisions in the UPA authorize the court to issue parenting orders, however there is also this:

“Except as otherwise provided by law, the juvenile court has exclusive original jurisdiction in proceedings… (c) To determine the legal custody of any child or to appoint a guardian of the person or legal custodian of any child who comes within the juvenile court’s jurisdiction under provisions of this section, and may also enter findings and orders as described in section 14-10-123 (1.5)…”

C.R.S. 19-1-104(1)(c) (Emphasis added)

Note the bolded language – the paternity court can determine child custody “except as otherwise provided by law.”

And in this case, the parents themselves even stipulated to a parenting plan in Colorado. However, the court of appeals found that, absent Colorado having a legal basis for jurisdiction over parenting, parties cannot agree to give Colorado such subject matter jurisdiction:

“To start, we recognize that mother and father initially stipulated to a parenting plan and asked the magistrate to adopt it. But the parties cannot confer subject matter jurisdiction on a court. See In re Marriage of Tonnessen, 937 P.2d 863, 865 (Colo. App. 1996). Furthermore, a question of subject matter jurisdiction may not be waived and may be raised at any time.”

G.C.C.M., ¶ 12.

UCCJEA Requires Home State Jurisdiction for Child Custody Orders

The G.C.C.M court cited a prior Colorado Supreme Court decision holding that the language bolded above “except as otherwise provided by law” means that the court’s jurisdiction is limited by other legislative enactments. G.C.C.M., ¶ 15. And in the context of parental responsibilities, this means complying with the jurisdictional requirements of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

C.R.S. 14-13-201 has four independent grounds for Colorado jurisdiction over child custody, only one of which is relevant to custody jurisdiction in the G.C.C.M. case: Colorado is the child’s home state, or was the home state within 182 days prior to commencement of the proceeding. And “home state” is defined as the state in which the child lived for 182 consecutive days immediately prior to filing, or, for a child under 6 months, has lived since birth. G.C.C.M., ¶ 17.

The UCCJEA does not prohibit a Colorado paternity proceeding, even when Colorado is not the child’s home state:

“A paternity determination, standing alone, does not fall within the definition of a child custody determination. A paternity determination decides who will be a child’s legal parent. But it does not address issues concerning custody of the child, an allocation of parental responsibilities, visitation, or parenting time.”

G.C.C.M., ¶ 21 (Cleaned Up).

But having the authority to adjudicate paternity (i.e. the child’s legal parentage), or even child support, does not imply the authority to adjudicate child custody matters. Looking at how other states have applied the UCCJEA, the court found that (other than Kentucky) they “have concluded that the UCCJEA does not provide a jurisdictional basis to make a child custody determination concerning an unborn child or a child who has never resided in the state.” G.C.C.M., ¶ 27.

Because UCCJEA jurisdiction only applies to where a child has “lived from birth”, necessarily child custody jurisdiction cannot apply to a child conceived in Colorado who was born elsewhere and never actually lived in Colorado: “the statute did not contemplate the in utero period of time in determining a child’s home state.” G.C.C.M., ¶ 28.

The fact that the UPA allows jurisdiction for purposes of establishing legal parentage before a child was born does not mean the UCCJEA allows child custody jurisdiction over an unborn child:

“Therefore, we agree with the majority of state courts that have concluded that the UCCJEA does not provide a jurisdictional basis to make a child custody determination concerning an unborn child.”

G.C.C.M., ¶ 29.

Moreover, no Colorado paternity law which contemplates child custody orders actually purports to override the jurisdictional requirements of the UCCJEA. And both the UCCJEA and the Colorado Children’s Code define a child as a “person” under 18 years of age – thereby only applying after birth. G.C.C.M., ¶ 33.

“While a paternity case may be initiated before a child’s birth, the home-state determination must be deferred until the child’s birth and the child’s birth state becomes the home state. In other words, a court does not acquire jurisdiction to make a child-custody determination simply because a proceeding is initiated before the child’s birth and the court has jurisdiction over the parents.”

G.C.C.M., ¶ 35.

Paternity Injunction Not Prevent Pregnant Mother Leaving State

Upon serving a paternity summons in Colorado, a statutory injunction goes into effect which prohibits:

Colorado Paternity - moving before child's birth

“Each party from removing a minor child who is the subject of a proceeding under this article from the state without the consent of all other parties or an order of the court modifying the injunction.”

C.R.S. 19-4-105.5(5)(c)(I)(B)

The father suggested that the mother violated this provision by having the child born in another state. The Court of Appeals rejected that argument, holding that the injunction only applied to a child already born, not to a child who was born in another state and had never been in Colorado. ¶ 38. Moreover, the injunction did not apply to a pregnant woman – it:

“Restrains a parent from removing a child from the state – it does not apply to an unborn child. Indeed, the Children’s Code contains no provision designed to restrict the conduct of a pregnant woman.”

G.C.C.M., ¶ 37 (Cleaned Up).

The takeaway? While “jumping the gun” and filing a paternity case in Colorado before a child is born may help speed things along so a parent can get a quicker custody order after birth, it does not allow a court to enter custody orders should the child ultimately be born and live in a different state.

We do not have many posts on paternity – it seems that Colorado paternity laws are settled enough that few unique issues make their ways through the courts. But if you are interested in other paternity cases, see our post on Colorado paternity requiring all presumptive fathers to be included in the case, or last year’s gem that the Uniform Parentage Act limits a child to two parents.

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