Colorado § 14-13-208 - Jurisdiction declined by reason of conduct.

§ 14-13-208. Jurisdiction declined by reason of conduct.

(1) Except as otherwise provided in section 14-13-204, or by other law of this state, if a person seeking to invoke the jurisdiction of a court of this state under this article has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:

(a) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;

(b) A court of the state otherwise having jurisdiction under a provision of law adopted by that state that is in substantial conformity with sections 14-13-201 to 14-13-203 determines that this state is a more appropriate forum under a provision of law adopted by that state that is in substantial conformity with section 14-13-207; or

(c) No court of any other state would have jurisdiction under the criteria specified in a provision of law adopted by that state that is in substantial conformity with sections 14-13-201 to 14-13-203.

(2) If a court of this state declines to exercise its jurisdiction pursuant to subsection (1) of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child-custody proceeding is commenced in a court having jurisdiction under a provision of law adopted by that state that is in substantial conformity with sections 14-13-201 to 14-13-203.

(3) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (1) of this section, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this article.

Source: L. 2000: Entire article R&RE, p. 1528, § 1, effective July 1.

Editor's note: This section is similar to former § 14-13-109 as it existed prior to 2000.

OFFICIAL COMMENT

The "Clean Hands" section of the UCCJA has been truncated in this Act. Since there is no longer a multiplicity of jurisdictions which could take cognizance of a child-custody proceeding, there is less of a concern that one parent will take the child to another jurisdiction in an attempt to find a more favorable forum. Most of the jurisdictional problems generated by abducting parents should be solved by the prioritization of home State in Section 14-13-201; the exclusive, continuing jurisdiction provisions of Section 14-13-202; and the ban on modification in Section 14-13-203. For example, if a parent takes the child from the home State and seeks an original custody determination elsewhere, the stay-at-home parent has six months to file a custody petition under the extended home state jurisdictional provision of Section 14-13-201, which will ensure that the case is retained in the home State. If a petitioner for a modification determination takes the child from the State that issued the original custody determination, another State cannot assume jurisdiction as long at the first State exercises exclusive, continuing jurisdiction.

Nonetheless, there are still a number of cases where parents, or their surrogates, act in a reprehensible manner, such as removing, secreting, retaining, or restraining the child. This section ensures that abducting parents will not receive an advantage for their unjustifiable conduct. If the conduct that creates the jurisdiction is unjustified, courts must decline to exercise jurisdiction that is inappropriately invoked by one of the parties. For example, if one parent abducts the child pre-decree and establishes a new home State, that jurisdiction will decline to hear the case. There are exceptions. If the other party has acquiesced in the court's jurisdiction, the court may hear the case. Such acquiescence may occur by filing a pleading submitting to the jurisdiction, or by not filing in the court that would otherwise have jurisdiction under this Act. Similarly, if the court that would have jurisdiction finds that the court of this State is a more appropriate forum, the court may hear the case.

This section applies to those situations where jurisdiction exists because of the unjustified conduct of the person seeking to invoke it. If, for example, a parent in the State with exclusive, continuing jurisdiction under Section 14-13-202 has either restrained the child from visiting with the other parent, or has retained the child after visitation, and seeks to modify the decree, this section in inapplicable. The conduct of restraining or retaining the child did not create jurisdiction. Jurisdiction existed under this Act without regard to the parent's conduct. Whether a court should decline to hear the parent's request to modify is a matter of local law.

The focus in this section is on the unjustified conduct of the person who invokes the jurisdiction of the court. A technical illegality or wrong is insufficient to trigger the applicability of this section. This is particularly important in cases involving domestic violence and child abuse. Domestic violence victims should not be charged with unjustifiable conduct for conduct that occurred in the process of fleeing domestic violence, even if their conduct is technically illegal. Thus, if a parent flees with a child to escape domestic violence and in the process violates a joint custody decree, the case should not be automatically dismissed under this section. An inquiry must be made into whether the flight was justified under the circumstances of the case. However, an abusive parent who seizes the child and flees to another State to establish jurisdiction has engaged in unjustifiable conduct and the new State must decline to exercise jurisdiction under this section.

Subsection (2) authorizes the court to fashion an appropriate remedy for the safety of the child and to prevent a repetition of the unjustified conduct. Thus, it would be appropriate for the court to notify the other parent and to provide for foster care for the child until the child is returned to the other parent. The court could also stay the proceeding and require that a custody proceeding be instituted in another State that would have jurisdiction under this Act. It should be noted that the court is not making a forum non conveniens analysis in this section. If the conduct is unjustifiable, it must decline jurisdiction. It may, however, retain jurisdiction until a custody proceeding is commenced in the appropriate tribunal if such retention is necessary to prevent a repetition of the wrongful conduct or to ensure the safety of the child.

The attorney's fee standard for this section is patterned after the International Child Abduction Remedies Act, 42 U.S.C. § 11607(b)(3). The assessed costs and fees are to be paid to the respondent who established that jurisdiction was based on unjustifiable conduct.

ANNOTATION

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

Annotator's note. Since § 14-13-208 is similar to § 14-13-109 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.

Paramount consideration must be the best interests of the child, not the wrongdoing of the parent. Nelson v. District Court, 186 Colo. 381, 527 P.2d 811 (1974).

In a habeas corpus hearing on behalf of a child, the court is by no means limited to an inquiry into the legal right by which the child is held, but must determine the broad question of what will best serve the child's interest. Nelson v. Schweitzer, 189 Colo. 511, 542 P.2d 382 (1975).

Jurisdiction not mandatory under subsection (1). This section does not prohibit the court from exercising jurisdiction if the children have been wrongfully taken to Colorado from another state but merely gives the court discretion to decline if just and proper under the circumstances. In re Severn, 44 Colo. App. 109, 608 P.2d 381 (1980).

Discretion to decline jurisdiction limited. A Colorado court's discretion to decline jurisdiction is limited by whether another state has jurisdiction to decide custody, whether it is in the best interests of the children that the Colorado court assume jurisdiction, and whether declining jurisdiction would be just and proper under the circumstances. Bakke v. district Court, 719 P.2d 313 (Colo. 1986).

Court lacks basis to grant noncustodial parent temporary custody of wrongfully retained minor. Where no compelling reason exists for the exercise of parens patriae jurisdiction, and the child has been retained in this state by the noncustodial parent after the term of visitation has expired, the court has no basis in fact or law to grant the noncustodial parent temporary custody of the minor child. Brock v. District Court, 620 P.2d 11 (Colo. 1980).

The trial court had jurisdiction even though the mother had abducted the child, because this article provides that unclean hands do not deprive the trial court of jurisdiction. Nelson v. District Court, 186 Colo. 381, 527 P.2d 811 (1974).

Improper retention of the child should affect only the court's decision to exercise its jurisdiction. Nelson v. District Court, 186 Colo. 381, 527 P.2d 811 (1974).

Applied in Woodhouse v. District Court, 196 Colo. 558, 587 P.2d 1199 (1978); In re Johnson, 634 P.2d 1034 (Colo. App. 1981); In Interest of B.C.B., 2015 COA 42, 411 P.3d 926.