Theres No Place Like Home Rule For Custody

Posted by: Russell Hebets       17-Aug-2011       (0) Comments        Back to Main Blog

In June the Colorado Supreme Court ruled on two cases that should affect rulings in custody cases where out of state courts have made custody determinations. In 09SC989, In re the Parental Responsibilities of L.S.the court ruled that out of state courts must exercise jurisdiction consistent with the requirements of the Parental Kidnaping Prevention Act for their decisions to be enforced in Colorado. In 11SA80 re the Marriage of Dedie and Springston the court ruled that according to New York law the New York court did not have proper jurisdiction to rule on custody and therefore their custody ruling is not enforceable in Colorado. These two cases may have a very large impact on parental kidnapping cases in Colorado.

The concept of parental kidnapping might be strange to some, but in many cases when a parent keeps a child in Colorado and another state’s courts have not granted them custody they are, in fact, committing a crime. The parental kidnapping prevention act was passed by Congress to try and avoid a situation where two states may rule differently in the same custody case, and thereby prevent a parent from being charged with kidnapping. The effect of this act according to Trishanda L. Hinton in 18 Ga. St. U.L. Rev. 58 is that states must grant full faith and credit to other states’ custody rulings.

The Colorado Supreme Court has just opened a whole new line of legal defense for those who might be fighting a custody battle or be accused of child kidnapping. In its two June decisions the court ruled that Colorado could determine whether other states’ courts (in this instance Nebraska and New York) had proper custody jurisdiction according to the laws of those states. This means that Colorado courts will have the ability to determine whether an out of state court had proper jurisdiction in custody cases.

While there may be a large legal debate about whether or not the practices set forth in these two cases is correct there is a sizeable opportunity presented for defense attorneys in parental kidnapping cases. If a person is accused of parental kidnapping in Colorado based on an out of state custody order a defense attorney could now present the defense that an out of state court did not have proper jurisdiction to rule in a custody case. The Colorado court should have to make a determination about whether or not the custody court had proper jurisdiction for custody, and therefore, if Colorado will enforce that custody determination. If custody is not enforced by Colorado there are obviously no grounds for parental kidnapping charges. This defense has the benefit of forcing Colorado courts to make determinations about interpretations of other states’ laws. This should make the party advancing the argument about the other state the most knowledgeable about the subject, and therefore help give them an advantage.

These conflicting cases between Nebraska and Colorado are almost certain to appear before the United States Supreme Court, so it is uncertain how long the Colorado ruling will remain as it is. However, prepared attorneys should use the current legal landscape while it exists.


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