Colorado § 14-13-310 - Hearing and order.

§ 14-13-310. Hearing and order.

(1) Unless the court issues a temporary emergency order pursuant to section 14-13-204, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:

(a) The child-custody determination has not been registered and confirmed under section 14-13-305 and that:

(I) The issuing court did not have jurisdiction under part 2 of this article;

(II) The child-custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under a provision of law adopted by that state that is in substantial conformity with part 2 of this article; or

(III) The respondent was entitled to notice, but notice was not given in accordance with standards in substantial conformity with the standards set forth in section 14-13-108, in the proceedings before the court that issued the order for which enforcement is sought; or

(b) The child-custody determination for which enforcement is sought was registered and confirmed under section 14-13-305 but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under this part 3.

(2) The court shall award the fees, costs, and expenses authorized under section 14-13-312 and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.

(3) If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.

(4) A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this part 3.

(5) A privilege against disclosure of communications between partners in a civil union and a defense of immunity based on the relationship of partners in a civil union or parent and child may not be invoked in a proceeding under this part 3.

Source: L. 2000: Entire article R&RE, p. 1535, § 1, effective July 1. L. 2013: (5) added, (SB 13-011), ch. 49, p. 164, § 16, effective May 1.

OFFICIAL COMMENT

The scope of inquiry for the enforcing court is quite limited. Federal law requires the court to enforce the custody determination if the issuing state's decree was rendered in compliance with the PKPA. 28 U.S.C. § 1738A(a). This Act requires enforcement of custody determinations that are made in conformity with Part 2's jurisdictional rules.

The certified copy, or a copy of the certified copy, of the custody determination entitling the petitioner to the child is prima facie evidence of the issuing court's jurisdiction to enter the order. If the order is one that is entitled to be enforced under Part 2 and if it has been violated, the burden shifts to the respondent to show that the custody determination is not entitled to enforcement.

It is a defense to enforcement that another jurisdiction has issued a custody determination that is required to be enforced under Part 2. An example is when one court has based its original custody determination on the UCCJA § 3(a)(2) (significant connections) and another jurisdiction has rendered an original custody determination based on the UCCJA § 3(a)(1) (home State). When this occurs, Part 2 of this Act, as well as the PKPA, mandate that the home state determination be enforced in all other States, including the State that rendered the significant connections determination.

Lack of notice in accordance with Section 14-13-108 by a person entitled to notice and opportunity to be heard at the original custody determination is a defense to enforcement of the custody determination. The scope of the defense under this Act is the same as the defense would be under the law of the State that issued the notice. Thus, if the defense of lack of notice would not be available under local law if the respondent purposely hid from the petitioner, took deliberate steps to avoid service of process or elected not to participate in the initial proceedings, the defense would also not be available under this Act.

There are no other defenses to an enforcement action. If the child would be endangered by the enforcement of a custody or visitation order, there may be a basis for the assumption of emergency jurisdiction under Section 14-13-204 of this Act. Upon the finding of an emergency, the court issues a temporary order and directs the parties to proceed either in the court that is exercising continuing jurisdiction over the custody proceeding under Section 14-13-202, or the court that would have jurisdiction to modify the custody determination under Section 14-13-203.

The court shall determine at the hearing whether fees should be awarded under Section 14-13-312. If so, it should order them paid. The court may determine if additional relief is appropriate, including requesting law enforcement officers to assist the petitioner in the enforcement of the order. The court may set a hearing to determine whether further relief should be granted.

The remainder of this section is derived from UIFSA § 316 with regard to the privilege of self-incrimination, spousal privileges, and immunities. It is included to keep parallel the procedures for child support and child custody proceedings to the extent possible.