2012 COA 8
Colo. Ct. App.2012Background
- International jurisdictional custody dispute between Colorado and Canada involving Leah Esquibel (mother) and Nicola Boswell (father) and their two children.
- Mother brought children to Colorado; father had previously obtained Canadian custody order.
- Mother appeals trial court’s UCCJEA ruling that Canada, not Colorado, has jurisdiction to determine parental responsibilities.
- Hague Convention and its implementing statutes and the UCCJEA govern jurisdiction and avoidance of conflicts in international custody cases.
- Adams County (Hague) denied return under grave risk of harm; Denver court held Canada had jurisdiction under UCCJEA and temporary emergency Colorado jurisdiction.
- Canadian court issued October 2011 order awarding father sole custody after reintegration therapy; appeal challenges subject-matter jurisdiction rather than the Hague return order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which court has jurisdiction over parental responsibilities | Esquibel argues Colorado lacks subject-matter jurisdiction | Boswell argues Canada has jurisdiction | Canada has jurisdiction under UCCJEA |
| Mootness of appeal due to Canadian order | Esquibel contends the issue remains live | Boswell contends moot by Canadian order | Appeal not moot; jurisdiction question remains live |
| Hague Convention vs UCCJEA interaction | Esquibel asserts Hague governs return only | Boswell contends Hague does not preempt jurisdiction analysis | Hague and UCCJEA operate in tandem; Canada may determine custody after grave-risk assessment |
| Notice/substantial conformity and due process in Canadian proceedings | Esquibel claims inadequate notice or nonconformity with UCCJEA | Boswell asserts adequate notice and participation; proceedings conformed | Canadian proceedings valid; due process not violated |
Key Cases Cited
- In re Marriage of McSoud, 131 P.3d 1208 (Colo.App.2006) (record-based review of trial facts; only record facts reviewable)
- Currier v. Sutherland, 218 P.3d 709 (Colo.2009) (subject-matter jurisdiction challenges may be raised after verdict)
- Navani v. Shahani, 496 F.3d 1121 (10th Cir.2007) (distinguishes mootness in Hague cases where custody orders entered post-appeal)
- Fawcett v. McRoberts, 326 F.3d 491 (4th Cir.2003) (cases involving Hague return without intervening custody orders not controlling here)
- Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004) (distinguishes context of Hague returns during appeal)