CO Code § 14-13-203 (2021)
2021 Colorado Code|Title 14 - Domestic Matters|Article 13 - Uniform Child-Custody Jurisdiction and Enforcement Act|Part 2 - Jurisdiction|§ 14-13-203. Jurisdiction to Modify Determination

  Except as otherwise provided in section 14-13-204, a court of this state may not modify a child-custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under section 14-13-201 (1)(a) or 14-13-201 (1)(b) and:   The court of the other state determines it no longer has exclusive, continuing jurisdiction under a provision of law adopted by that state that is in substantial conformity with section 14-13-202 or that a court of this state would be a more convenient forum under a provision of law adopted by that state that is in substantial conformity with section 14-13-207; or    A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.        History. Source: L. 2000: Entire article R&RE, p. 1525, § 1, effective July 1.    Editor's note:   This section is similar to former § 14-13-115 as it existed prior to 2000.   OFFICIAL COMMENT   This section complements Section 14-13-202 and is addressed to the court that is confronted with a proceeding to modify a custody determination of another State. It prohibits a court from modifying a custody determination made consistently with this Act by a court in another State unless a court of that State determines that it no longer has exclusive, continuing jurisdiction under Section 14-13-202 or that this State would be a more convenient forum under Section 14-13-207 . The modification State is not authorized to determine that the original decree State has lost its jurisdiction. The only exception is when the child, the child's parents, and any person acting as a parent do not presently reside in the other State. In other words, a court of the modification State can determine that all parties have moved away from the original State. The court of the modification State must have jurisdiction under the standards of Section 14-13-201 .   ANNOTATION   Law reviews. For article, “The Rights of Children and the Crisis in Custody Litigation: Modification of Custody in and out of State”, see 46 U. Colo. L. Rev. 495 (1974-75). For article, “The Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act”, see 11 Colo. Law. 1224 (1982). For article, “Waking the Dormant PKPA in Colorado”, see 21 Colo. Law. 2209 (1992). For article, “Nuts and Bolts of the PKPA”, see 22 Colo. Law. 2397 (1993).   Annotator's note. Since § 14-13-203 is similar to § 14-13-115 as it existed prior to the 2000 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.   Intent of child custody jurisdiction act. The uniform child custody jurisdiction act attempts to guarantee reasonable security and continuity of environment to children by discouraging their unilateral removal from one state to another to avoid obeying custodial orders. Kraft v. District Court, 197 Colo. 10 , 593 P.2d 321 (1979).   The uniform act establishes additional conditions and restrictions before Colorado courts can modify existing foreign custody decrees. In re Glass, 36 Colo. App. 91, 537 P.2d 1092 (1975).   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. Fry v. Ball, 190 Colo. 128 , 544 P.2d 402 (1975).   No authority to modify unless foreign state without jurisdiction. A Colorado court is not authorized to modify an existing custody decree from another state even in an emergency unless the court which rendered that decree no longer has or has declined to assume jurisdiction of the matter. In re Thomas, 36 Colo. App. 96, 537 P.2d 1095 (1975).   To interpret this section as a prohibition against a Colorado court's exercise of jurisdiction to enter temporary and protective custody orders in order to protect children endangered by their surroundings would, in effect, vitiate the very purpose of the parens patrial jurisdiction granted by § 14-13-104 . E.P. v. District Court, 696 P.2d 254 (Colo. 1985).   Section 14-13-114 and this section require a court to recognize the valid custody decrees of other jurisdictions and not to modify such decrees unless the rendering state no longer has jurisdiction or has declined to exercise jurisdiction. Woodhouse v. District Court, 196 Colo. 558 , 587 P.2d 1199 (1978).   Absent exceptional circumstances, a Colorado court must refrain from modifying another state's custody decree if that state has continuing jurisdiction over the custody matter at the time the action to modify is instituted in Colorado. Kraft v. District Court, 197 Colo. 10 , 593 P.2d 321 (1979).   Colorado courts are free to determine whether another court's proceedings are substantially in conformity with our act, and must do so if the issue is raised. Lynch v. Lynch, 770 P.2d 1383 (Colo. App. 1989).   Loss of jurisdiction of original state. While the intent of the uniform act is that the original state shall have continuing jurisdiction under this section, such jurisdiction can be lost by the erosion of a child's and parents' significant connections with the state. McCarron v. District Court ex rel. County of Jefferson, 671 P.2d 953 (Colo. 1983).   When Colorado is the home state of the children, Colorado has the jurisdiction to modify a sister state's decree in the best interests of the children. Kudler v. Smith, 643 P.2d 783 (Colo. App. 1981).   Application of parens patriae jurisdiction. Where the father alleged the existence of an emergency situation which he claimed required the Colorado court to intervene and modify the Kansas divorce decree, under such circumstances, the Colorado court, under its general parens patriae jurisdiction over a child physically present in the state, could properly make a temporary order to protect the child. In re Thomas, 36 Colo. App. 96, 537 P.2d 1095 (1975).   Foreign court's jurisdiction over custody preclude Colorado court's exercise of jurisdiction. If the courts of another state have continuing jurisdiction over custody and have not declined to exercise that jurisdiction, then a Colorado court is precluded by § 14-13-114 and this section from exercising jurisdiction in the case, at least in the absence of a grave emergency. Brock v. District Court, 620 P.2d 11 (Colo. 1980).   Judicial relief may extend beyond issuance of temporary orders for compelling reasons only. Generally, judicial relief should not extend beyond the issuance of temporary protective orders pending the application to the court of the rendering state for appropriate modification of the custody decree. Only when there are compelling reasons, articulated in the record, that render such out-of-state application impractical, should a Colorado court grant anything but temporary relief under its parens patriae jurisdiction. Brock v. District Court, 620 P.2d 11 (Colo. 1980).   A Colorado trial court cannot modify a California custody order unless and until the court has determined whether the California court would continue to exercise jurisdiction. The burden was on the prospective adoptive parents to establish by competent evidence all facts essential to jurisdiction. In re Custody of K.R., 897 P.2d 896 (Colo. App. 1995).   In dependency and neglect proceeding, court erred by failing to follow UCCJEA procedures for acquiring jurisdiction to modify prior custody order. Record reflected a prior foreign court custody order. The court should have contacted the foreign court or heard evidence on the parties' residency relating to jurisdiction under the act to modify the foreign order. People in Interest of M.S., 2017 COA 60 , 413 P.3d 287.   District court held to have properly concluded that it lacked jurisdiction to modify another state's custody decree. Clark v. Kendrick, 670 P.2d 32 (Colo. App. 1983).   Determination that a court of another state had jurisdiction held not erroneous. In re Edilson, 637 P.2d 362 (Colo. 1981).   “Presently reside” is not equivalent to “currently reside” or “physical presence”. “Presently reside” is not confined only to a party's physical presence within the borders of a state, but necessitates an inquiry broader than technical domicile into the totality of the circumstances that make up domicile--that is, a person's permanent home to which he or she intends to return to and remain. In re Brandt, 2012 CO 3, 268 P.3d 406.   More than a perfunctory determination of residence is required to divest an issuing state of its jurisdiction. In re Brandt, 2012 CO 3, 268 P.3d 406.   Totality of the circumstance test to determine if a party “presently resides” is a mixed question of fact and law and includes, but is not limited to, the length and reasons for the parents' and the child's absence from the state of initial jurisdiction; their intent in departing from the state and returning to it; reserve and active military assignments affecting one or both parents; where they maintain a home, car, driver's license, job, professional licensure, and voting registration; where they pay state taxes; the initial state's determination of residency based on the facts and that state's law; and any other circumstances demonstrated by evidence in the case. In re Brandt, 2012 CO 3, 268 P.3d 406.   The burden of proof when applying the totality of the circumstance test lies with the parent who is petitioning to modify jurisdiction. In re Brandt, 2012 CO 3, 268 P.3d 406.   The preference for “home state” pertains only to jurisdiction to enter an initial child custody order, not jurisdiction to modify an order that has already been entered by another state. In re Brandt, 2012 CO 3, 268 P.3d 406.   Applied in Zumbrun v. Zumbrun, 42 Colo. App. 37, 592 P.2d 16 (1978); Roberts v. District Court, 198 Colo. 231 , 596 P.2d 65 (1979).