2020 COA 152
Colo. Ct. App.2020Background
- Father (S.M.M.) filed a Colorado paternity action under the Uniform Parentage Act (UPA) before the child was born; both parents lived in Colorado at filing.
- A magistrate entered a pre-birth paternity judgment and adopted the parents’ stipulated parenting plan; a permanent-orders hearing was scheduled.
- Mother (L.M.D.) moved to New Hampshire before the child’s birth; the child was born in New Hampshire and has never lived in Colorado.
- Mother moved to dismiss Colorado’s custody orders for lack of subject-matter jurisdiction and opened a New Hampshire custody proceeding; New Hampshire stayed its case pending resolution.
- The juvenile court affirmed the paternity judgment but vacated Colorado’s custody/allocation order, concluding Colorado lacked UCCJEA jurisdiction to make an initial child-custody determination for a child who never resided in Colorado.
- Father appealed; the Colorado Court of Appeals affirmed the juvenile court’s decision.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether a paternity action filed pre-birth under the UPA supplies Colorado jurisdiction to make a child-custody (parental-responsibilities) determination despite the UCCJEA | Filing under the UPA before birth granted Colorado authority to allocate parental responsibilities as part of the paternity proceeding | UCCJEA provides the exclusive jurisdictional rules for initial child-custody determinations; UPA does not authorize pre-birth custody orders | Held for Mother: UCCJEA governs initial custody jurisdiction; UPA may permit pre-birth paternity filings but does not authorize pre-birth custody allocations |
| Whether the UCCJEA furnishes jurisdiction over an unborn child or a child who never lived in Colorado (home-state analysis) | Home-state analysis should be fixed at filing; Colorado acquired jurisdiction when parents lived here and action was filed | Home state is determined by where the child has lived since birth; an unborn child cannot have a home state and thus UCCJEA does not support Colorado jurisdiction here | Held for Mother: Home-state inquiry depends on post-birth residence; UCCJEA does not provide jurisdiction over unborn children or children who never resided in Colorado |
| Whether the temporary injunction restraining removal applied to the unborn child and whether mother violated it by leaving the state while pregnant | The injunction issued at filing (pre-birth) should prevent mother from removing the child once born; mother violated the injunction by relocating | The temporary restraint applies to a "minor child" and does not operate against an unborn child; a child born out of state and never in Colorado cannot be restrained by it | Held for Mother: Injunction does not reach an unborn child; magistrate’s apparent finding of a violation was properly reviewed but did not confer custody jurisdiction |
| Whether mother is entitled to attorney fees under § 14-10-119 following dismissal of custody claims | (N/A) | Mother requested fees under § 14-10-119 | Denied: § 14-10-119 does not govern fee awards in Children’s Code paternity proceedings; different statute (§ 19-4-117) applies |
Key Cases Cited
- N.A.H. v. S.L.S., 9 P.3d 354 (Colo. 2000) (UPA governs parentage determinations; paternity decides legal parentage distinct from custody).
- Nistico v. District Court, 791 P.2d 1128 (Colo. 1990) (home-state custody analysis is based on where child has lived since birth).
- In re Marriage of Tonnessen, 937 P.2d 863 (Colo. App. 1996) (court lacked custody jurisdiction where child never resided in Colorado).
- DeWitt v. Lechuga, 393 S.W.3d 113 (Mo. Ct. App. 2013) (UCCJEA does not limit jurisdiction to determine paternity or child support; UCCJEA applies to custody/visitation aspects).
- Gray v. Gray, 139 So. 3d 802 (Ala. Civ. App. 2013) (UCCJEA does not provide jurisdiction over unborn child).
- In re Custody of Kalbes, 733 N.W.2d 648 (Wis. Ct. App. 2007) (home-state determination looks to where child lived from birth; conception location insufficient).