Opinion by
T1 This case involves an international jurisdictional custody dispute involving Colorado and Canadian courts. It concerns Leah Marie Esquibel (mother), who at all relevant times lived in Colorado, Nicola Laurence Boswell (father), who at all relevant times lived in Vancouver, Canada, and their two young children.
12 Mother appeals the trial court's order that Canada, rather than Colorado, has jurisdiction to determine parental responsibilities for the children. However, we must first address whether the trial court's order has become moot as a result of an October 2011 Canadian eustody order. As discussed below, we conclude the case is not moot.
13 We then address two related sets of laws-(1) the Hague Convention on Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501 (1980) (Hague Convention), and its implementing statutes, 42 U.S.C. §§ 11601 to 11611 (2006), and (2) the Uniform Child Custody Jurisdiction and Enforcement Act, sections 14-13-101 to -403, C.R.S.2011 (UCCJEA)-which are intended to prevent jurisdictional conflicts in child eus-tody cases. We conclude that the trial court correctly determined that Canada has jurisdiction and therefore affirm its order.
14 Initially, we note that we may not consider information outside of the trial court record. See In re Marriage of McSoud,
I. Background
T5 Beginning in 2001, the parties lived together in Canada for six years and had two children. After mother took the children, without informing father, and came to Colorado in 2007, father obtained a Canadian order granting him custody of the children.
T6 Father then located mother and the children in Colorado, and filed a Hague Convention petition in Adams County District Court requesting that the children be returned to Canada. Concurrently, mother moved in Denver District Court for an allocation of parental responsibilities for the children. Proceedings on mother's motion were stayed, at father's request, until his Hague Convention petition could be heard and resolved in Adams County.
T7 After a hearing on the petition, the Adams County District Court found that although father had made a prima facie case to return the children to him in Canada, returning the children would risk subjecting them to sexual abuse. Thus, return was denied under the exception in article 13(b) of the Hague Convention for situations where returning a child creates a grave risk of exposing the child to physical or psychological harm or otherwise places the child in an intolerable situation.
18 The Adams County and Denver actions were then consolidated in Denver, and father moved to dismiss, contending that under the UCCJEA, parental responsibilities should be determined in Canada where the children had lived their entire lives and where the first custody proceeding was brought. After an evidentiary hearing, the court agreed with father that Canada had jurisdiction under the UCCJEA, but further ordered that the children would remain with mother in Colorado, pursuant to the temporary emergency jurisdiction procedures in section 14-18-204, C.R.S.2011, until the Canadian court could enter an order, or for a maximum of one year. Mother appealed from this order.
T9 While her appeal was pending, however, the Canadian court conducted a multi-day hearing in September 2011, in which mother and father both participated. The Canadian court heard testimony from the parents, and from expert witnesses, on the issues of custody and guardianship. In October 2011, in a detailed forty-five-page order, the Canadian court rejected mother's allegations that father had abused the children and awarded father sole custody and guardianship of them following a brief period of reintegration therapy. We requested supplemental briefing from the parties concerning whether the October 2011 Canadian order moots mother's appeal, and we begin by addressing that issue.
II. Mootness
{10 Mother contends that the Canadian order does not moot her appeal. We agree.
111 If a judgment, when rendered on an issue, would not have any effect on an existing controversy, the issue is moot. See In re Marriage of Balanson,
112 Here, mother argues that Colorado, rather than Canada, has subject matter jurisdiction to determine parental responsibilities for the children. If she is correct, then the intervening Canadian order would not be determinative of that issue, and thus would not moot the appeal. See Currier v. Sutherland,
1 13 We view Navani v. Shahani,
114 Here, in contrast, mother does not appeal from the Hague Convention return order. Rather, she appeals from the trial court's ruling under the UCCJEA that Canada, and not Colorado, has subject matter jurisdiction to determine parental responsibilities for the children. The fact that Canada has already entered a custody order does not moot the issue of which court had subject matter jurisdiction to enter an order in the first place. See Currier,
T 15 We reject mother's argument, however, that Fawcett v. McRoberts,
T16 Because we conclude that the appeal is not moot, we need not address mother's contention that the exceptions to mootness should apply, or father's argument to the contrary.
III, Jurisdiction to Determine Parental Responsibilities
T17 Mother contends that the trial court erred by finding under the UCCJEA that Canada has jurisdiction to determine parental responsibilities for the parties' children. We disagree.
118 We review de novo the trial court's interpretation of the Hague Convention and its implementing statute, see Jeffers,
A. UCCJEA
119 The UCCJEA addresses whether a Colorado court or a court in another state has jurisdiction in parental responsibilities proceedings. Id. For UCCJEA purposes, a court in another country is treated as though it were a court in another state. See § 14-18-104(1), C.R.S.2011; see also Bellew v. Larese,
120 Under section 14-18-206(1), C.R.S. 2011, a Colorado court may not exercise jurisdiction, exeept on a temporary emergency basis, if proceedings have been commenced in a court of another state having jurisdiction substantially in conformity with the UC-CJEA, unless those proceedings have been terminated or stayed because Colorado is a more convenient forum. See People in Interest of M.C.,
121 A court where a child is located may exercise temporary emergency jurisdiction under section 14-183-204(1), C.R.8.2011, to protect the child from threatened mis
1 22 Here, as mother acknowledged in her petition for parental responsibilities, an action involving the children was initiated by father in Canada before she filed the petition. Recognizing the pending Canadian custody action, the trial court communicated on the record with the Canadian court. It then found that because Canada's jurisdiction was substantially in conformity with the UC-CJEA and Canada had not determined that Colorado was a more convenient forum, Canada had jurisdiction to determine parental responsibilities. See $ 14-13-206(2), C.R.S. 2011 (requiring a court to communicate with the court in the state where proceedings were first brought). Therefore, the trial court further determined that Colorado could exercise only temporary emergency jurisdiction under section 14-13-204.
123 Mother argues, however, that Colorado's subject matter jurisdiction to determine parental responsibilities for the children was established in father's Hague Convention proceeding in Adams County, and that because the children's return to Canada was denied in that proceeding, the trial court erred by applying the UCCJEA and finding that Canada, rather than Colorado, had jurisdiction. We are not persuaded.
B. Hague Convention
T24 The purpose of the Hague Convention is to return promptly children who are wrongfully removed from their place of habitual residence, unless one of the narrow exceptions to return applies. See 42 U.S.C. § 11601(a)(4d) (2006); Jeffers,
125 Return is not required under the Hague Convention, however, when there is a grave risk that return would expose a child to physical or psychological harm or otherwise place the child in an intolerable situation. Hague Convention art. 13(b); Abbott, - U.S. at -,
126 Here, after the children's return to Canada was denied under the grave risk of harm exception, the trial court applied the UCCJEA and determined that although the children would remain in Colorado temporarily, Canada had jurisdiction to enter final parental responsibilities orders for them. Thus, the issue presented here is whether Canada, which was undisputedly the children's place of habitual residence before mother brought them to Colorado and was also the place where the first custody proceeding was initiated, or Colorado, which is the state to which mother brought the children and the state that exercised temporary emergency jurisdiction over them, has jurisdiction to enter final parental responsibilities orders. We conclude that the trial court properly determined that Canada has jurisdiction in this situation.
127 We reject mother's argument, relying on the Supremacy Clause, U.S. Const. art. VI, cl. 2, that the Hague Convention proceedings preempted the trial court's UCCJEA analysis. Proceedings under the UCCJEA do not conflict with, and are not preempted by, proceedings under the Hague Convention because the two laws address different objectives. See Suarez v. Castrillo, (D.Colo. No. 11-ev-01762-MSK, July 13, 2011) (
128 Accordingly, although mother is correct that the Hague Convention usually directs that the child be physically taken to the country that will determine parental responsibilities, see Suarez,
129 Under the Hague Convention, a country to which a child has been removed has jurisdiction to decide the merits of the return claim but not necessarily the merits of the underlying custody dispute. See Hague Convention art. 19; 42 U.S.C. § 11601(b)(d) (2006); Carrascosa v. McGuire,
130 We further reject mother's argument that article sixteen of the Hague Convention, which provides, in relevant part, that a state to which a child has been taken shall not decide the merits of a custody claim "until it has been determined that the child is not to be returned," compels a different result. We do not interpret this provision as requiring that a state to which a child has been taken decide final parental responsibilities in all cases when the child is not returned. Rather, we conclude that the trial court did not err, under the cireumstances involved here, by exercising only temporary emergency jurisdiction under the UCCJEA, and allowing Canada, where the children had lived all their lives and where the evidence as to their best interests and mother's abuse allegations was located, to exercise jurisdiction over parental responsibilities.
T31 Indeed, the trial court's order concerning the UCCJEA fulfilled the dual objectives of the Hague Convention and the UC-CJEA. The Adams County District Court's order determined that Canada was the country of habitual residence of the children, but concluded that they should not be returned to Canada under the Hague Convention's "grave risk of harm" exception. Applying the UCCJEA, the Denver District Court then concluded that Colorado only had temporary emergency jurisdiction, based on allegations of father's abuse of the children. By concluding that the Denver District Court's Jurisdiction was only temporary, the Denver court provided an opportunity for the Canadian court to decide the issue of custody, including whether father had abused the children.
132 As noted above, following a lengthy hearing, the Canadian court rejected the allegations of father's abuse and ordered a brief period of reintegration therapy before the children would be reunited with father.
183 As a result, the Hague Convention's objective of adjudicating custody in the country of the children's habitual residence was met, as was its corollary objective of protect
T34 We are not persuaded otherwise by Cerit v. Cerit,
35 As mother acknowledges, Susan L. v. Steven L.,
136 We note that our disposition here is consistent with Jeffers, in which a division of this court remanded for a hearing on whether the children should be returned to Greece under the Hague Convention, but affirmed the trial court's decision under the UCCJA that Greece had jurisdiction to enter a final custody order for them. See Jeffers,
T37 We further note that our disposition is also consistent with the 1996 Hague Convention on Jurisdiction, Applicable Law, Ree-ognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, 35 LL.M. 1391 (1996), which was signed by the United States in October 2010, but which has not yet been codified into law. See Linda D. Elrod & Robert G. Spector, A Review of the Year in Fomily Law: Working Toward More Uniformity in Laws Relating to Families, 44 Fam. LQ. 469, 470 (2011). The 1996 convention provides, consistent with the UCCJEA and with our disposition here, that a child's place of habitual residence retains jurisdiction, that the place to which the child has been removed may take only such urgent measures as necessary to protect the child, and that such protective measures lapse as soon as the place of habitual residence takes action concerning the child. See 1996 Hague Convention arts. 7, 11(2).
C. Claim and Issue Preclusion
138 Mother further contends that claim and issue preclusion bar father's claim that Canada has jurisdiction to determine parental responsibilities Again, we disagree.
139 Claim preclusion (formerly res judicata) operates to bar a second action on a claim that was, or could have been, litigated in a prior proceeding. City & Cnty. of Denver v. Block 173 Assocs.,
T40 Claim and issue preclusion do not apply, however, when the claim or issue sought to be precluded is not identical to the claim or issue litigated in the prior proceeding. See id. at 830-31. Accordingly, neither doctrine applies here because, contrary to mother's contention, subject matter jurisdiction to determine final parental responsibilities was not decided in father's Hague Convention action. Rather, as noted above, the Hague Convention action concerned only return of the children, and the trial court determined jurisdiction to enter parental responsibilities orders under the UCCJEA. Thus, there is no identity of claims or issues.
141 Additionally, like the trial court, we do not view the suggestion by the Adams County District Court that father may assert his rights in Denver as ruling that subject
D. Exceptions to International Application of the UCCJEA
1 42 Mother further contends that the trial court erred in ruling that Canada has jurisdiction because the Canadian action was not in substantial conformity with the UCCJEA and because Canada violates fundamental principles of human rights. See § 14-13-104(2), (8), C.R.S.2011. We disagree.
148 We reject mother's argument that she had inadequate notice of the Canadian custody proceedings. As evidenced by her having listed the Canadian action in her Colorado petition for parental responsibilities as a previously filed action concerning the children, she clearly had actual notice of the proceedings. The record further reflects that mother was represented by a Canadian attorney who not only filed motions on her behalf before she returned to Canada, but also represented her in the custody proceedings that were conducted while this appeal was pending.
{ 44 Thus, the fact that father was unable to serve mother initially, because she left Canada without disclosing her location, does not, in our view, mean that mother was denied a reasonable opportunity to be heard such that the Canadian action was not in substantial conformity with the UCCJEA. See, e.g., Nash v. Salter,
$45 Like the trial court, we also reject mother's contention that jurisdiction is appropriate in Colorado because Canada's child custody laws violate fundamental principles of human rights. This exeeption applies only in the most egregious cases. § 14-13-104 emt., C.R.S. 2011. Nothing in the record here supports the conclusion that the exception applies to Canada. The record of the communication between the Colorado and Canadian courts indicates that the Canadian court was willing to hear and consider mother's allegations. As noted, the October 2011 order by that court indicates that the court conducted a lengthy hearing, heard testimony from mother, father, and multiple expert witnesses, and then rejected mother's allegations of father's abuse and ordered a period of reintegration therapy before the children were reunited with father.
146 Because mother fully participated, with counsel, in the custody proceedings in Canada, we reject her claim that her due process rights were violated because she did not have adequate notice or sufficient opportunity to participate in those proceedings.
IV. Mother's Spousal Abuse Allegations
147 Last, mother contends that the trial court erred by not making findings concerning her spousal abuse allegations. We disagree.
148 Contrary to mother's argument, the trial court here did not allocate temporary parental responsibilities under section 14-10-108(1.5), C.R.S.2011. Rather, the court exercised only the very limited jurisdiction permitted under section 14-13-204 to protect the children by keeping them in Colorado temporarily until the Canadian court entered further orders. Accordingly, the tri
V. Conclusion
{ 49 The trial court did not err by determining, after the children were retained in Colorado under the Hague Convention grave risk of harm exception and section 14-13-204(1), that Canada was the proper forum under the UCCJEA to enter final parental responsibilities orders for them.
T 50 The order is affirmed.