Brock v. District Court of Boulder County in 20th Judicial Dist., 80SA368

• Decision Date: 27 October 1980
• Docket Number: No. 80SA368,80SA368
• Citation: 620 P.2d 11
• Parties: Karen Jean Lane BROCK, Petitioner, v. The DISTRICT COURT OF the COUNTY OF BOULDER IN the 20TH JUDICIAL DISTRICT, State of Colorado and the Honorable Horace B. Holmes, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 11

620 P.2d 11

Karen Jean Lane BROCK, Petitioner, v. The DISTRICT COURT OF the COUNTY OF BOULDER IN the 20TH JUDICIAL DISTRICT, State of Colorado and the Honorable Horace B. Holmes, one of the Judges thereof, Respondents.

No. 80SA368.

Supreme Court of Colorado.

Oct. 27, 1980.

Rehearing Denied Dec. 22, 1980.

French & Stone, Gary S. Mallo, Joseph C. French, Boulder, for petitioner.

Taussig & Flowers, P. C., John G. Taussig, Jr., Boulder, for respondents.

QUINN, Justice.

In this original proceeding under C.A.R. 21, Karen Lane Brock (petitioner) seeks relief in the nature of prohibition against the respondent-district court in connection with its exercise of child-custody jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) section 14-13-101 et seq., C.R.S. 1973. We issued a rule to show cause and now make the rule absolute.

The petitioner is the mother of an eight year old son born as issue of her marriage to John Lane (father). On May 27, 1976, the Superior Court of Floyd County, Georgia, entered a decree of divorce and awarded permanent custody of the minor child to petitioner with visitation rights to the father. After the divorce the petitioner remained with her minor child in Georgia and the father moved to Colorado. In June 1980 the child came to Boulder, Colorado, to visit his father for one month. At the conclusion of the visitation period the father refused to allow the child to return to his mother in Georgia and he filed with the respondent court a petition for an order awarding temporary and permanent custody to him.

The father invoked jurisdiction of the respondent court under section 14-13-104(1), C.R.S. 1973, claiming that an emergency existed with respect to the return of the child to Georgia. The petitioner traveled to Boulder and filed a motion to dismiss the father's petition on the grounds that Georgia still retained jurisdiction over this matter and the respondent court lacked jurisdiction under the UCCJA. Prior to the court's determination of the motion to dismiss the father submitted psychiatric and psychological reports that indicated the child was hyperactive and was experiencing a childhood adjustment disorder. The court denied the petitioner's motion to dismiss and awarded temporary custody to the father. It held (1) that Georgia no longer had jurisdiction over custody in this case, (2) Colorado did have jurisdiction under section 14-13-104(1), C.R.S. 1973, and (3) the father's showing of an emergency justified the court's award of temporary custody to him. Original proceedings followed in this court. We conclude that the respondent court's exercise of jurisdiction was invalid and prohibition is in order.

I.

Georgia, like Colorado, has enacted the provisions of the UCCJA. Ga. Code Ann. § 74-501 et seq. (1980 Supp.). The objectives of that act, as pertinent here, were recently summarized in Roberts v. District Court, Colo., 596 P.2d 65, 68 (1979):

"First, we seek to avoid conflict with the courts of other states concerning custody determination. Section 14-13-102(1)(a), C.R.S. 1973. Second, we seek to deter the unilateral action of a parent in contravention of an existing child custody decree in order to obtain a different custody decree. Section 14-13-102(1)(e), C.R.S. 1973. Lastly, we seek to promote cooperation with the courts of other states in order to ensure that the determination of custody is made by the court which can best decide the case in the interest of the child. Section 14-13-102(1)(b), C.R.S. 1973."

Section 14-13-104(1)(c), C.R.S. 1973, does authorize Colorado courts to exercise jurisdiction over custody matters in emergency situations when the child is physically present in the state and is threatened with mistreatment, abuse, or is otherwise neglected or dependent. However, that section neither grants the courts of this state the right, nor imposes upon them the duty, to modify out-of-state custody decrees under any and all circumstances merely because of a claimed emergency and a threshold showing that some form of judicial intervention might be appropriate. In order to effectuate the general purposes of the UCCJA ¹ and to deter "jurisdictional fishing with children as bait," ² section 14-13-104(1), C.R.S. 1973, must be read in conjunction with other provisions of the act.

Section 14-13-114, C.R.S. 1973, requires Colorado courts to recognize and enforce a custody decree of another state when the rendering court "assumed jurisdiction under statutory provisions substantially in accordance with this article" or when that court entered the decree "under factual circumstances meeting the jurisdictional standards" of the UCCJA. Similarly, section 14-13-115(1), C.R.S. 1973, prohibits Colorado courts from modifying the custody decree of another state unless it appears that the rendering state "does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this article or has declined to assume jurisdiction to modify the decree ...." See Woodhouse v. District Court, 196 Colo. 558, 587 P.2d 1199 (1978).

Neither the petitioner nor the father questions the Georgia court's jurisdiction to enter the original custody decree nor the validity of that decree. The central inquiry in this proceeding, therefore, is whether Georgia presently has jurisdiction in this matter. If the Georgia courts have continuing jurisdiction over custody and have not declined to exercise that jurisdiction, then the respondent court is precluded by sections 14-13-114 and 115, C.R.S. 1973, from exercising jurisdiction in this case, at least in the absence of a grave emergency. E. g., Lopez v. District Court, Colo., 606 P.2d 853 (1980); Roberts v. District Court, supra ; Kraft v. District Court, 197 Colo. 10, 593 P.2d 321 (1979); Fry v. Ball, 190 Colo. 128, 544 P.2d 402 (1975).

Georgia statutory law clearly vests their courts with jurisdiction to modify the custody decree in this case. Section 74-504(a), Ga. Code Ann. (1980 Supp.), which corresponds in all respects to section 14-13-104(1), C.R.S. 1973, provides that:

"(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

"(1) This State (A) is the home State of the child at the time of commencement of the proceeding, or (B) had been the child's home State within six months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or

"(2) It is in the best interest of the child that a court of this State assume jurisdiction because (A) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (B) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or "(3) The child is physically present in this State and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;

"(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody." ³

Because Georgia courts have jurisdiction at this time to hear and determine any request for modification of the initial Georgia custody decree, the respondent court clearly exceeded its jurisdiction under the UCCJA in assuming plenary subject-matter jurisdiction over the issue of custody.

II.

The respondent court asserts that even if Georgia has jurisdiction to modify the custody decree, a Colorado court should be able to exercise jurisdiction under the circumstances of this case under the doctrine of parens patriae. We do not agree.

In Wilson v. Wilson, 172 Colo. 566, 474 P.2d 789 (1970), we noted that where an emergency exists affecting the immediate needs and welfare of the child, a Colorado court may enter appropriate orders for the protection of the child even if its orders contravene those of a sister state that still...