By: Stephen J. Plog
We’ve all seen movies or TV shows in which “the new kid” comes to school, having moved from somewhere far away. He might be the child of a military officer or she might have that country twang in her accent as she navigates her way through the new school in the big city. In the end, of course, the child ends up making friends and amity rules the day. What we often don’t see in these cinematic, fictional works is the back story on how the new kid came to town, from a legal standpoint. Were her parents divorced? Was there a custody battle? Which state will have jurisdiction to deal with new visitation or custody issues?
Moving from cinema to the real, family law world, the reality is that families split apart and people move on. The parents of that child may have come to an agreement that one could move out of state with the child as part of the final divorce or child custody agreement. They may have litigated the issue with the court and the court may have granted permission as part of its final orders. Likewise, after the custody case or divorce case was concluded, one parent may have sought to relocate with the child to another state, perhaps due to a new relationship, a new job, or being transferred within their same company. Regardless of which legal avenue was pursued to move the child from Colorado, the child is now in a new state. People often erroneously presume that custody jurisdiction transfers with the child to the new state. However, this is just not true.
Pursuant to Colorado statute, and particularly the Uniform Child Custody Jurisdiction and Enforcement Act, C.R.S. 14-13-101 et. seq., when a child moves from Colorado, Colorado still maintains jurisdiction over the child issues in the case until and unless someone seeks to change that.
Under the UCCJEA, Colorado maintains “exclusive” and “continuing” jurisdiction to modify its custody orders unless either both parents and the child no longer continue to reside in Colorado, in which case the child’s new state can assume jurisdiction of the case. In such an instance, the party seeking to transfer his or her case will need to file a petition in the new state to get the Colorado orders registered there. This will be governed by the rules and procedures in that new state. In the case of no one continuing to reside in Colorado, the UCCJEA makes no mention of a requisite time frame for transfer, other than the child being in the new state for essentially 6 months or more prior to the transfer.
In reality, even if child and one parent have moved from Colorado, it is more common to see one of the parents remaining here. The question then arises as to what does one do to transfer the case if a parent remains here? The UCCJEA, specifically C.R.S. 14-13-207, offers another mechanism for transferring jurisdiction when Colorado is no longer a “convenient forum.” In this scenario, the decision on whether to give up jurisdiction rests solely with your Colorado divorce or custody court and will likely entail the filing of a motion asking Colorado to relinquish jurisdiction to the new state. To prevail with this course of action one will need to file a motion with the court showing that the child has been gone for a significant amount of time (that Colorado is no longer the child’s “home state”) and that the significant body of evidence regarding the child’s upbringing, education, health, and general care lies in the new state. Of course the other side will get to respond and the decision will ultimately be up to the court, having weighed the evidence presented.
Whereas scenario one is all but automatic, scenario two can entail a fight. Oddly, one Denver area family law court might readily hand over jurisdiction to another state, whether for policy or other reasons, while a court in another county might want to hold onto that case for whatever reason. Transferring the case under Section 207 will not only depend on the facts, but the specific court and judge.
Having to come back to Colorado to litigate custody issues from far away can be costly. Thus, transferring modification jurisdiction to the child’s new state may be logistically and financially optimal for the parent who moved away. However, it’s not automatic and you should consult with an experienced Denver family law attorney to learn your rights and available options related to moving jurisdiction. Likewise, the parent left behind may also need assistance of counsel to keep the case here. Change is never easy, but the law at least creates some rules and mechanisms for dealing with it related to child custody, relocation, and jurisdiction.
To speak with an attorney about your particular case, contact Plog & Stein, P.C. for a personalized case evaluation.