Colorado § 14-13-206 - Simultaneous proceedings.

§ 14-13-206. Simultaneous proceedings.

(1) Except as otherwise provided in section 14-13-204, a court of this state may not exercise its jurisdiction under this part 2 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under a provision of law adopted by that state that is in substantial conformity with section 14-13-207.

(2) Except as otherwise provided in section 14-13-204, a court of this state, before hearing a child-custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section 14-13-209. If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with a provision of law adopted by that state that is in substantial conformity with this article, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this article does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

(3) In a proceeding to modify a child-custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child-custody determination has been commenced in another state, the court of this state may:

(a) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;

(b) Enjoin the parties from continuing with the proceeding for enforcement; or

(c) Proceed with the modification under conditions it considers appropriate.

Source: L. 2000: Entire article R&RE, p. 1527, § 1, effective July 1.

Editor's note: This section is similar to former § 14-13-107 as it existed prior to 2000.

OFFICIAL COMMENT

This section represents the remnants of the simultaneous proceedings provision of the UCCJA § 6. The problem of simultaneous proceedings is no longer a significant issue. Most of the problems have been resolved by the prioritization of home state jurisdiction under Section 14-13-201; the exclusive, continuing jurisdiction provisions of Section 14-13-202; and the prohibitions on modification of Section 14-13-203. If there is a home State, there can be no exercise of significant connection jurisdiction in an initial child custody determination and, therefore, no simultaneous proceedings. If there is a State of exclusive, continuing jurisdiction, there cannot be another State with concurrent jurisdiction and, therefore, no simultaneous proceedings. Of course, the home State, as well as the State with exclusive, continuing jurisdiction, could defer to another State under Section 14-13-207. However, that decision is left entirely to the home State or the State with exclusive, continuing jurisdiction.

Under this Act, the simultaneous proceedings problem will arise only when there is no home State, no State with exclusive, continuing jurisdiction and more than one significant connection State. For those cases, this section retains the "first in time" rule of the UCCJA.

Subsection (2) retains the UCCJA's policy favoring judicial communication. Communication between courts is required when it is determined that a proceeding has been commenced in another State.

Subsection (3) concerns the problem of simultaneous proceedings in the State with modification jurisdiction and enforcement proceedings under part 3. This section authorizes the court with exclusive, continuing jurisdiction to stay the modification proceeding pending the outcome of the enforcement proceeding, to enjoin the parties from continuing with the enforcement proceeding, or to continue the modification proceeding under such conditions as it determines are appropriate. The court may wish to communicate with the enforcement court. However, communication is not mandatory. Although the enforcement State is required by the PKPA to enforce according to its terms a custody determination made consistently with the PKPA, that duty is subject to the decree being modified by a State with the power to do so under the PKPA. An order to enjoin the parties from enforcing the decree is the equivalent of a temporary modification by a State with the authority to do so. The concomitant provision addressed to the enforcement court is Section 14-13-306 of this Act. That section requires the enforcement court to communicate with the modification court in order to determine what action the modification court wishes the enforcement court to take.

The term "pending" that was utilized in the UCCJA section on simultaneous proceeding has been replaced. It has caused considerable confusion in the case law. It has been replaced with the term "commencement of the proceeding" as more accurately reflecting the policy behind this section. The latter term is defined in Section 14-13-102 (5).

ANNOTATION

Law reviews. For article, "The Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act", see 11 Colo. Law. 1224 (1982). For article, "Interstate Custody Problems Revisited", see 11 Colo. Law. 2596 (1982).

Annotator's note. Since § 14-13-206 is similar to § 14-13-107 as it existed prior to the 2000 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.

Provisions of § 14-13-123 are not jurisdictional but are to assist the trial court in undertaking the investigation required under the circumstances set forth in subsection (3) concerning proceedings pending in another state. Zimmerman v. Evans, 749 P.2d 1008 (Colo. App. 1987).

When communication with other court required. The requirement for communication with the other court is appropriate if the trial court is unsure of whether to accept jurisdiction and is seeking information as to the most appropriate forum, but where the trial court is not uncertain as to the more appropriate forum for resolution of the issues, communication is not required. In re Edilson, 637 P.2d 362 (Colo. 1981).

Communication with the trial court in another jurisdiction is required only if the trial court is unsure whether to accept jurisdiction and seeks information as to the more appropriate forum. In re Custody of K.R., 897 P.2d 896 (Colo. App. 1995).

When civil case deemed "pending". Under the common law of this state a civil case is deemed "pending" until final determination on appeal. In re Rector, 39 Colo. App. 111, 565 P.2d 950 (1977).

If, at the time of filing, another state is exercising continuing jurisdiction substantially in conformity with the act, a Colorado court is prohibited from exercising jurisdiction. People in Interest of K.G., 876 P.2d 1 (Colo. App. 1993).

There is no pending proceeding in a court of another state where a stipulation of the parties is not made an order of the court, or where the stipulation expires by its own terms. McCarron v. District Court ex rel. County of Jefferson, 671 P.2d 953 (Colo. 1983).

The existence or non-existence of orders in the other state is not a factor critical to invocation of this section; rather, communication between courts of different states is required if "proceedings are pending". In re Olmo, 701 P.2d 866 (Colo. App. 1984).

The appeal of a child custody order in the Kansas courts was a "pending" proceeding within the meaning of subsection (1). In re Rector, 39 Colo. App. 111, 565 P.2d 950 (1977).

Action by father in California deemed "pending" for purposes of this section although Colorado grandparents, who had physical charge of the child, had not been notified of the California action when they brought a subsequent custody suit in Colorado. Lopez v. District Court, 199 Colo. 207, 606 P.2d 853 (1980).

Procedure when case pending in court of another state. Where the rendering court in another state initially had jurisdiction of a child custody case and the case is still pending in that judicial system, the proper course of action in seeking change of custody in this state is to request a stay from the court in which the case is pending. In re Rector, 39 Colo. App. 111, 565 P.2d 950 (1977).

Because child-custody proceeding, in the form of a restraining order issued against mother, was pending in Texas when Colorado court filed dependency and neglect action and because child-custody proceeding had not been terminated or stayed by the court in Texas, Colorado court only properly had temporary emergency jurisdiction. People ex rel. M.C., 94 P.3d 1220 (Colo. App. 2004).

Court to determine conformity with the Colorado custody act. Although this section prohibits a court from proceeding with a petition concerning child custody where the court of another state is "exercising jurisdiction substantially in conformity with this article" and the other court refuses to stay its proceedings, Colorado trial courts are free to determine whether the other court's proceedings are substantially in conformity with the Colorado custody act. Bakke v. District Court, 719 P.2d 313 (Colo. 1986).

Where there was no custody proceeding pending in sister state which had granted the original custody decree, this section was not a bar to a Colorado court hearing challenge to sister state's subsequent decree ordering that father, who had custody of the children and who was domiciled in Colorado for over a year, return the children to their mother. Wheeler v. District Court, 186 Colo. 218, 526 P.2d 658 (1974).

This section, which generally favors exercise of jurisdiction in the state where custody is pending, does not apply where jurisdiction had never existed in this state. Colorado did not have priority jurisdiction merely because simultaneous proceedings were commenced first in this state where the children were born in another state and had always lived in another state. In re Tonnessen, 937 P.2d 863 (Colo. App. 1996).

Court did not err in determining that Colorado could exercise only temporary emergency jurisdiction where petition for parental responsibilities was pending in Canada, Canada's exercise of jurisdiction was substantially in conformity with the Uniform Child Custody Jurisdiction and Enforcement Act, and Canada had not determined that Colorado was a more convenient forum. In re T.L.B., 2012 COA 8, 272 P.3d 1148.

In a continuing custody dispute where none of the parties still live in Colorado, the fact that any proceedings related to custody inherently arise from an initial custody order, which was made by Colorado courts, does not necessarily give Colorado continuing jurisdictional authority. In re Pritchett, 80 P.3d 918 (Colo. App. 2003).

Applied in In re Baisley, 749 P.2d 446 (Colo. App. 1987); G.B. v. Arapahoe County Ct., 890 P.2d 1153 (Colo. 1995); In Interest of B.C.B., 2015 COA 42, 411 P.3d 926.