Fry v. Ball

• Decision Date: 29 December 1975
• Docket Number: No. 26971,26971
• Parties: Richard Dee FRY and Norma Jean Fry, Petitioners, v. The Honorable Conrad L. BALL, District Court Judge, Respondent.
• Court: Colorado Supreme Court

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.

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

Roy M. Wittstruck, Fort Collins, for respondent.

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 '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.

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 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, 22 Vand.L.Rev. 1207, 1218 (1969).

Under this statutory scheme, it is a basic principle that a custody decree rendered by the court of one state, which had jurisdiction at the time the decree was entered, is entitled to recognition by all other states. In this light, section 114 of the Act provides:

'The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this article or which was made under factual circumstances meeting the jurisdictional standards of the article, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this article.'

A corollary principle is that if the state which rendered the custody decree still has jurisdiction, other states cannot modify the decree. In this regard, section 115 of the Act states in part:

'(1) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this article or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction.' Section 14--13--115, C.R.S.1973.

Thus, under these two sections, a Colorado court must recognize and refrain from modifying a custody decree of another state where the sister state had jurisdiction at the time its decree was entered and has continuing jurisdiction at the time the action to modify is instituted in this state. See In Re Custody of Thomas, Colo.App., 537 P.2d 1095 (1975); In Re Custody of Glass, Colo.App., 537 P.2d 1092 (1975). As California has adopted the Uniform Act, ⁴ we must determine the existence or absence of jurisdiction under its version of the Act.

California generally retains continuing jurisdiction to modify its custody decrees under its local law. Ferreira v. Ferreira, 9 Cal.3d 824, 109 Cal.Rptr. 80, 512 P.2d 304 (1973); See In Re Custody of Glass, supra. In order to determine if, in an interstate setting, California had jurisdiction and retained it at the time the grandparents instituted their action in Colorado, we must examine section 5152(1)(b) of the California Civil Code (1975 Supp.), which provides that a California court has jurisdiction if:

'It is in the best interest of the child that a court of this state assume jurisdiction because (1) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.'

In this case, both of the natural parents were domiciliaries of California. This is sufficient to establish a 'significant connection' with the state. See Nelson v. District Court, 186 Colo. 381, 527 P.2d 811 (1974). The child was a California domiciliary from the time of his birth until September, 1974, which was almost three of his four years of life. His guardianship was determined under a California decree, the modification of which by the same court has triggered this action. The various social agencies in Orange County, California, have accumulated a great deal of information regarding Scott, the status of his parents, and the past records regarding his guardianship. We believe these facts support a finding that California had jurisdiction at the time of the modification decree, and retained that jurisdiction at the time the grandparents' petition was filed in Colorado.

The Act attempts to limit 'custody determination jurisdiction to only one state,' In Re Custody of Glass, supra, and sections 114 and 115 reflect a general policy which favors the continuing jurisdiction of the court rendering the original custody decree. Uniform Laws Annotated, Uniform Child Custody Jurisdiction Act § 15, Commissioner's Note; Bodenheimer, supra. Thus, even though Colorado may also have...