What is Jurisdiction?
For a case to be decided in Court, that court needs to have jurisdiction over the people in the case (“personal jurisdiction”), and the type of case at issue (“subject-matter jurisdiction”). These rules can be complicated, especially in the area of child custody jurisdiction, and are the bane of many a law student as well as lawyers.
Long story short: a person needs to have connections to the area where a case happens, and the court needs to be authorized by law to decide the matter in question. You can’t sue Captain Jean Luc Picard in Colorado to admit he’s a lesser Captain than James T. Kirk. Picard is French, and as far as I know, has never set foot in Colorado, and the Courts are not authorized to handle squabbles of mere opinion.
Child Custody Jurisdiction
In most states, including Colorado, jurisdiction for cases involving child custody is covered by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The main provision of UCCJEA is that a court may not adjudicate the custody of a child until that child establishes “home-state” status in the same state as the court. Generally, home state for child custody jurisdiction requires that the child live in the state for six months prior to the commencement of a custody case (182 days in Colorado), though there are some exceptions if the child is under six months, moves frequently, or another state has already exercised custody jurisdiction.
The UCCJEA also allows a court to exercise child custody jurisdiction on an emergency basis, but this is short-term jurisdiction, until the child’s home state has the opportunity to step in. Once the emergency is over, a state can only continue to handle the case if the home-state declines to do so.
So do Colorado Courts have child custody jurisdiction to handle cases where parents are accused of abuse when traveling through Colorado, perhaps even on vacation? A recent decision of the Colorado Court of Appeals provides some answers.
Temporary Emergency Child Custody Jurisdiction
In the case of S.A.G.,1People in the Interest of S.A.G., 2020 COA 45. a family from Arkansas was traveling through Colorado, and was referred to county DHS for an incident involving the child. The incident was serious enough for the child to be removed from the parents by county authorities, and a Dependency and Neglect (D+N) case was opened.
D+Ns are what Colorado calls child welfare cases. If there is serious neglect or abuse of a child, a court can use D+N cases to temporarily remove children from the home and institute treatment plans for parents so that they can regain custody of their children. In extreme cases, the Children’s Code authorizes a court to terminate a parent/child relationship. .
While the opinion does not describe the alleged abuse, we do know that the family was only in Colorado for three weeks when it occurred. Afterward, the child was removed from the parents’ care, and after several months, the Court severed the parent/child relationship.
“Temporary emergency jurisdiction under the UCCJEA is limited in scope and in time. A court exercising temporary emergency jurisdiction must promptly investigate whether the court has ongoing, non-emergency jurisdiction, and may not enter a permanent custody disposition based on emergency jurisdiction. A custody determination made under these provisions is a temporary order. The purpose of the order is to protect the child until the State that has jurisdiction under Section 14-13-201 enters an order.”S.A.G.2People in the Interest of S.A.G., 2020 COA 45, ¶ 18. (Cleaned Up).
UCCJEA and Dependency & Neglect
In S.A.G., the child’s home state was Arkansas, and the child had lived continuously in Arkansas until the trip to Colorado. Even without Colorado having child custody jurisdiction, the child’s home state being Arkansas would not prevent Colorado from taking temporary emergency action to protect the child. But that provision of the UCCJEA did not authorize continuing child custody jurisdiction without a finding of a basis for Colorado jurisdiction – and in this case, there was none.
One of the bases for Colorado jurisdiction argued by DHS was that Arkansas had effectively declined to exercise jurisdiction. But in order for that to happen, the Colorado trial court must affirmatively contact Arkansas to determine if it was declining jurisdiction – something it failed to do. DHS argued that declination could be inferred by the lack of a child custody case being filed in Arkansas, and that the requirement for the Colorado judge to contact the Arkansas court was merely a “best practice”. The Court of Appeals was not persuaded:
“Section 14-13-201 requires the home state to decline jurisdiction before the non-home state can exercise it. Simply put, without knowledge of the Colorado proceeding, an Arkansas court could not have determined or decided whether ‘to exercise jurisdiction.’”S.A.G.3People in the Interest of S.A.G., 2020 COA 45, ¶ 32.
The state’s final argument, that since there was no custody action in Arkansas, there was no judge there for Colorado to contact, also got nowhere:
“Despite all of this, the Department and GAL insist that unless a proceeding had been commenced or was pending in Arkansas, the juvenile court would not know where to inquire. We are not persuaded. Under the UCCJEA, the Department had the burden to establish jurisdiction. And, here, the Department had been communicating with a counterpart agency in Arkansas concerning the home study into paternal grandmother. The Department could have sought assistance from that agency in determining the proper court to contact.”S.A.G.4People in the Interest of S.A.G., 2020 COA 45, ¶ 34 (Cleaned Up).
The takeaway? While Colorado can step in with an emergency parenting order while a child is present in the state, this is temporary only, and without UCCJEA jurisdiction, DHS and the courts cannot continue to exercise child custody jurisdiction, nor terminate parental rights.
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