Fry v. Ball, No. 26971

Docket NºNo. 26971
Citation190 Colo. 128, 544 P.2d 402
Case DateDecember 29, 1975
CourtSupreme Court of Colorado

Page 402

544 P.2d 402
190 Colo. 128
Richard Dee FRY and Norma Jean Fry, Petitioners,
v.
The Honorable Conrad L. BALL, District Court Judge, Respondent.
No. 26971.
Supreme Court of Colorado, En Banc.
Dec. 29, 1975.

[190 Colo. 129]

Page 404

Bye & Gascoyne, David Bye, Fort Collins, for petitioners.

Roy M. Wittstruck, Fort Collins, for respondent.

[190 Colo. 130] KELLEY, Justice.

Petitioners, the natural parents of the minor child, Scott Tracy Fry, instituted this original proceeding seeking to enjoin respondent from exercising jurisdiction under the Uniform Child Custody Jurisdiction Act. Section 14--13--101 Et seq., C.R.S.1973. A rule to show cause issued and we now make the rule absolute.

On November 14, 1972, Gwendolyn L. Fry, Scott's paternal grandmother, was appointed his guardian by the Superior Court of Orange County, California. 1 The petitioners consented to the appointment, because the father was in a California jail awaiting extradition to Oregon on charges of selling narcotics, and the mother was an outpatient in a heroin addiction clinic. At the time of the appointment, Scott was seventeen months of age, and petitioners and the paternal grandparents were domiciliaries of California.

In September, 1974, petitioners learned that the grandparents had sold their home and were planning to return to Colorado where they had once lived. On September 6, 1974, petitioners procured a temporary restraining order from the Superior Court which prohibited the guardian from leaving California with Scott. However, the grandparents left California before the order was served upon them. The guardian, however, failed to obtain the prior consent of the Superior Court to establish domicile in Colorado with the child, in violation of section 1500 of the California Probate Code. 2 The guardian maintains that her failure to seek court permission was not intentional, but due to ignorance of California law.

On November 18, 1974, the guardian's attorney in Colorado wrote a letter to petitioners explaining that the guardian planned to seek permission of the Superior Court for a change of domicile. However, the record does not indicate that the guardian actually sought permission.

On April 3, 1975, almost seven months after Scott was taken from California by the guardian, the parents filed a petition in the Superior Court seeking termination of the guardianship. The guardian was personally served in Colorado on May 5, 1975, and on May 21, 1975, she appeared by counsel at a hearing in the Superior Court on the merits of the petition. On June 3, 1975, the Superior Court entered a decree returning custody of Scott to petitioners and terminating the guardianship because [190 Colo. 131] 'there no longer appears to be any necessity for the continuation of the guardianship.' The court also found the guardian to be in violation of § 1500 of the California Probate Code.

Page 405

Pursuant to this decree, petitioners arrived in Colorado to pick up Scott and return to California. Although the guardian was prepared to surrender the child, Scott was not willingly relinquished due to the haste with which the father sought to remove the child. A scuffle ensued between the grandparents and the natural parents which resulted in the arrest of the parents and the filing of assault charges against them.

Shortly after the alleged assault, the grandparents filed a petition in the District Court of Larimer County for a determination of Scott's custody. The district judge granted an Ex parte order restoring physical custody of Scott to the grandparents and enjoining petitioners from any further contacts with the grandparents. Petitioners' motion to dissolve the Ex parte order was denied, and a date for the hearing on the merits was set. Petitioners then commenced this proceeding. Scott is presently in the physical custody of the grandparents in Colorado.

I.

The issue framed by this case is whether under the foregoing circumstances the Uniform Child Custody Jurisdiction Act 3 requires that the Colorado court recognize and refrain from modifying the California child custody decree entered on June 3, 1975. We believe the Act requires that the Colorado court defer to the jurisdiction of the California court.

The underlying policy of the Act is to prevent the desperate shifting from state to state of thousands of innocent children by interested parties seeking to gain custody rights in one state even though denied those rights by the decree of another state. The provisions of the Act seek 'to eliminate jurisdictional fishing with children as bait.' Wheeler v. District Court, 186 Colo. 218, 526 P.2d 658 (1974).

An overview of the structure demonstrates the statutory concepts utilized to accomplish the objectives of the Act:

'First, one court in the country assumes full responsibility for custody of a particular child. Second, for this purpose a court is selected which has access to as much relevant information about the child and family in the state as possible. Third, other essential evidence, which is inevitably out-of-state in the case of an interestate child, is channelled into the first court which might be called the 'custody court.' Fourth, other states abide by the decision of the custody court and enforce it in their territory, if necessary. Fifth, adjustments in visitation and other ancillary provisions of the decree, and custody changes, if any, are as a rule made by the original [190 Colo. 132] custody court. Sixth, if the child and his family no longer have appreciable ties with the state of the original court, a new custody court is selected to take the place of the original one for purposes of adjustments and modifications, and pertinent information is channelled from the prior to the subsequent custody court.' Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws,...

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50 practice notes
  • Clark v. Clark, No. 1-679A159
    • United States
    • Indiana Court of Appeals of Indiana
    • May 13, 1980
    ...Ehr, (1979) 77 Ill.App.3d 540, 33 Ill.Dec. 11, 396 N.E.2d 87; Carson v. Carson, (1977) 29 Or.App. 861, 565 P.2d 763; Fry v. Ball, (1975) 190 Colo. 128, 544 P.2d 402; Brown v. District Court In and For Denver, (1976) Colo., 557 P.2d 384; Moran v. Moran, (1972) N.Dak., 200 N.W.2d 263. 2 While......
  • G.S. v. Ewing, No. 74261
    • United States
    • Supreme Court of Oklahoma
    • January 16, 1990
    ...resides in the original state." The UCCJA and Oklahoma case law require more. 3 Nor do I find that Fry v. Ball, 190 Page 74 Colo. 128, 544 P.2d 402, 405 (1975), cited by the majority, stands for such a proposition. Fry involved a petition for a Colorado court to modify a California custody ......
  • Siegel v. Siegel, No. 53256
    • United States
    • Supreme Court of Illinois
    • January 20, 1981
    ...time of the modification proceeding, Page 1318 [49 Ill.Dec. 304] has jurisdiction under criteria of the Uniform Act. Fry v. Ball (1975), 190 Colo. 128, 544 P.2d 402. (See also Fernandez v. Rodriguez (Sup.Ct.1978), 97 Misc.2d 353, 411 N.Y.S.2d As is apparent from these cases and Professor Bo......
  • Biggers v. Biggers, No. 13524
    • United States
    • United States State Supreme Court of Idaho
    • September 8, 1982
    ...of the court's continuing jurisdiction under I.C. § 32-705. See Brown v. District Court, 192 Colo. 93, 557 P.2d 384 (1976); Fry v. Ball, 190 Colo. 128, 544 P.2d 402 (1975); Wheeler v. Wheeler, 383 So.2d 655 (Fla.App.1980); Pierce v. Pierce, 287 N.W.2d 879 (Iowa 1980); Larsen v. Larsen, 5 Ka......
  • Request a trial to view additional results
50 cases
  • Clark v. Clark, No. 1-679A159
    • United States
    • Indiana Court of Appeals of Indiana
    • May 13, 1980
    ...Ehr, (1979) 77 Ill.App.3d 540, 33 Ill.Dec. 11, 396 N.E.2d 87; Carson v. Carson, (1977) 29 Or.App. 861, 565 P.2d 763; Fry v. Ball, (1975) 190 Colo. 128, 544 P.2d 402; Brown v. District Court In and For Denver, (1976) Colo., 557 P.2d 384; Moran v. Moran, (1972) N.Dak., 200 N.W.2d 263. 2 While......
  • G.S. v. Ewing, No. 74261
    • United States
    • Supreme Court of Oklahoma
    • January 16, 1990
    ...resides in the original state." The UCCJA and Oklahoma case law require more. 3 Nor do I find that Fry v. Ball, 190 Page 74 Colo. 128, 544 P.2d 402, 405 (1975), cited by the majority, stands for such a proposition. Fry involved a petition for a Colorado court to modify a California custody ......
  • Siegel v. Siegel, No. 53256
    • United States
    • Supreme Court of Illinois
    • January 20, 1981
    ...time of the modification proceeding, Page 1318 [49 Ill.Dec. 304] has jurisdiction under criteria of the Uniform Act. Fry v. Ball (1975), 190 Colo. 128, 544 P.2d 402. (See also Fernandez v. Rodriguez (Sup.Ct.1978), 97 Misc.2d 353, 411 N.Y.S.2d As is apparent from these cases and Professor Bo......
  • Biggers v. Biggers, No. 13524
    • United States
    • United States State Supreme Court of Idaho
    • September 8, 1982
    ...of the court's continuing jurisdiction under I.C. § 32-705. See Brown v. District Court, 192 Colo. 93, 557 P.2d 384 (1976); Fry v. Ball, 190 Colo. 128, 544 P.2d 402 (1975); Wheeler v. Wheeler, 383 So.2d 655 (Fla.App.1980); Pierce v. Pierce, 287 N.W.2d 879 (Iowa 1980); Larsen v. Larsen, 5 Ka......
  • Request a trial to view additional results

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