Colorado § 14-13-207 - Inconvenient forum.

§ 14-13-207. Inconvenient forum.

(1) A court of this state that has jurisdiction under this article to make a child-custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.

(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(a) Whether domestic violence or domestic abuse has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) The length of time the child has resided outside this state;

(c) The distance between the court in this state and the court in the state that would assume jurisdiction;

(d) The relative financial circumstances of the parties;

(e) Any agreement of the parties as to which state should assume jurisdiction;

(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

(3) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child-custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

(4) A court of this state may decline to exercise its jurisdiction under this article if a child-custody determination is incidental to an action for divorce, dissolution of marriage, or another proceeding while still retaining jurisdiction over the divorce, dissolution of marriage, or other proceeding.

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

Editor's note: This section is similar to former § 14-13-108 as it existed prior to 2000.

OFFICIAL COMMENT

This section retains the focus of Section 7 of the UCCJA. It authorizes courts to decide that another State is in a better position to make the custody determination, taking into consideration the relative circumstances of the parties. If so, the court may defer to the other State.

The list of factors that the court may consider has been updated from the UCCJA. The list is not meant to be exclusive. Several provisions require comment. Subparagraph (2)(a) is concerned specifically with domestic violence and other matters affecting the health and safety of the parties. For this purpose, the court should determine whether the parties are located in different States because one party is a victim of domestic violence or child abuse. If domestic violence or child abuse has occurred, this factor authorizes the court to consider which State can best protect the victim from further violence or abuse.

In applying subparagraph (2)(c), courts should realize that distance concerns can be alleviated by applying the communication and cooperation provisions of Sections 14-13-111 and 14-13-112.

In applying subsection (2)(g) on expeditious resolution of the controversy, the court could consider the different procedural and evidentiary laws of the two States, as well as the flexibility of the court dockets. It also should consider the ability of a court to arrive at a solution to all the legal issues surrounding the family. If one State has jurisdiction to decide both the custody and support issues, it would be desirable to determine that State to be the most convenient forum. The same is true when children of the same family live in different States. It would be inappropriate to require parents to have custody proceedings in several States when one State could resolve the custody of all the children.

Before determining whether to decline or retain jurisdiction, the court of this State may communicate, in accordance with Section 14-13-110, with a court of another State and exchange information pertinent to the assumption of jurisdiction by either court.

There are two departures from Section 7 of the UCCJA. First, the court may not simply dismiss the action. To do so would leave the case in limbo. Rather the court shall stay the case and direct the parties to file in the State that has been found to be the more convenient forum. The court is also authorized to impose any other conditions it considers appropriate. This might include the issuance of temporary custody orders during the time necessary to commence a proceeding in the designated State, dismissing the case if the custody proceeding is not commenced in the other State or resuming jurisdiction if a court of the other State refuses to take the case.

Second, UCCJA, § 7(g) which allowed the court to assess fees and costs if it was a clearly inappropriate court, has been eliminated. If a court has jurisdiction under this Act, it could not be a clearly inappropriate court.

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 § 14-13-207 is similar to § 14-13-108 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 this section are discretionary, and their application is best left to the judgment of the trial court. In re Edilson, 637 P.2d 362 (Colo. 1981).

Trial court held not to abuse its discretion in concluding that Colorado was an inconvenient forum. In re Tatum, 653 P.2d 74 (Colo. App. 1982).

Payment of attorney fees. Before a court can award attorney fees as a necessary expense, there should be a showing that the fee has been paid or agreed upon and that the amount is reasonable. In re Thomas, 36 Colo. App. 96, 537 P.2d 1095 (1975).

Where there was no evidence presented as to the award of attorney fees, the matter must be remanded for hearing and for judgment to be entered in the amount found to be reasonable under the circumstances of the case and of the parties thereto. In re Thomas, 36 Colo. App. 96, 537 P.2d 1095 (1975).

Award of attorney fees upheld. In the absence of such transcript or other matters of record, the trial court's award of expenses and attorney fees must be presumed to be reasonable and correct. In re Tatum, 653 P.2d 74 (Colo. App. 1982).

Applied in In re Nicholson, 648 P.2d 681 (Colo. App. 1982); Johnson v. District Court, 654 P.2d 827 (Colo. 1982); In Interest of B.C.B., 2015 COA 42, 411 P.3d 926.