Colorado custody is represented in an extensive body of law stemming from both statute and case law. The primary statutory section related to the establishment of custody and visitation is Colorado Revised Statutes section 14-10-124. Though this is the general section courts and lawyers look to, experienced Denver area family law attorneys know that there are additional statutory sections and intricacies that come to play. Though most custody cases in Colorado involve two parties who live in Colorado and intend on staying in Colorado, there are instances in which interstate issues arise. Without getting into an extensive analysis of interstate custody, this posting will focus on the issue of pregnancy, where a child is born, and how the Uniform Child Custody Jurisdiction and Enforcement Act governs custody matters in such instances.
Occasionally, though not often, our custody lawyers will get a call from an expectant mother wanting to retain legal services prior to the birth of her child. With similar frequency, we will also get calls from a potential father indicating that his former girlfriend, or sometimes wife, is pregnant, and wanting to know his rights and options as relate to custody. In either instance, the first question our attorneys will ask relates to where the child will be born and/or if the expectant mother is planning on remaining in Colorado to give birth. This question is extremely pivotal as relates to whether Colorado will even have jurisdiction to exercise jurisdiction over the child.
Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, the UCCJEA, C.R.S. 14-13-102, a Colorado court can exercise custody, properly termed “parental responsibilities, jurisdiction over a child if Colorado is the child’s “home state.” The home state is generally the state in which a child has resided for the preceding 6 months prior to commencement of a case. For children under 6 months of age, the home state will be that state in which the child has lived since birth.
When an expectant father calls, his first question is often whether he can file a custody case prior to the birth of the child. The answer under Title 14 is “no.” However, under C.R.S. Title 19, Article 4, the “paternity” statutory section, one can file a paternity case regarding an unborn child. In these instances, our attorneys are very cautious to assess what the father’s wishes are. Additionally, we always ask whether he believes the expectant mother is intending to stay in Colorado during her pregnancy or if she is planning on going out of state to have the child. If the mother is planning on having the child out of state, and is not likely to return, there is really no reason for the father to file a custody case prior to the birth of the child. If the child is born elsewhere, regardless of where conceived, Colorado will not have jurisdiction over the child. Expectant fathers will often respond in disbelief when presented with the notion that they really have no say in whether the mother goes elsewhere to have the child or decides to live prior to birth of the child. Though a court, at least in a Title 19 situation, can exercise jurisdiction in this instance over the potential mother as will relate to financial issues, such as child support, the reality is that jurisdiction as to custody flows with the child, not the parents.
In instances in which the expectant mother intends to leave the state prior to birth, or has left prior to birth, the father is forced to deal with the matter in the other state, with no exception. Of course if mother one day returns to Colorado, and presuming specific time period criteria are met, Colorado could, down the road, obtain jurisdiction. Expectant father’s can be left fighting a child support battle here and a custody battle in a different state. This challenges notions of efficiency and fairness, but the law is what it is at this time. The key is making sure your custody attorney knows the ins and outs of these situations.
As indicated above, expectant mothers also call Plog & Stein prior to the birth of their children, whether wanting to get going on the establishment of custody or child support. The expectant mother is bound by the same statutory sections as the expectant father. These statutes apply whether we are speaking to a married or unmarried woman. Thus, one of the first questions we also ask expectant mothers who call is whether they are wanting to remain in Colorado or are planning on moving with their babies to another state, perhaps to be close to a family support network. In these instances, what expectant mothers need to be aware of is that if they are wanting to leave Colorado and raise their children elsewhere, they are better off leaving Colorado prior to the birth. If the child is born in Colorado, and depending upon timing, Colorado will have UCCJEA jurisdiction over the child. If the father elects to file a custody case in Colorado, the mother who intends on leaving the state, as well as the child, may be stuck in Colorado for quite some time waiting for a court order to leave. There is not guarantee that that court order will come, though case law set forth in the Spahmer decision, 113 P.3d 158 (Colo. 2005), may provide hope down the road. It can take months or longer to litigate such a case, depending on the county. Setting aside schools of thought related to a child needing both parents, with the monetary cost, emotional toll, and uncertainty that come with a custody battle, a pregnant mother knowing she wants to raise her baby elsewhere may better off leaving Colorado before the child is born.
In this instance, though the mother will likely be able to have her custody case dealt with in her destination state of choice, just like the expectant father, she will likely be forced to litigate in two states, as the child support issues would remain in Colorado with the father. Unlike custody, child support issues are generally heard in the state of the potential payor, usually the father, not the home state of the child.
Pregnancy poses real life challenges for both expectant parents. Sadly, many couples split up before a child is even born. In this day and age, it is prudent for people in these situations to start planning from a legal standpoint ahead of time. It is also important for either prospective parent to know his or her options as relate to custody, the birth of the child, and the interstate ramifications that can arise. Knowledge is power. Each parent should know his or her rights before the big day. There are nine months to wait. Thus, there is no excuse for being behind in terms of your information gathering as relates to your legal rights before that big day comes.