The child custody order in a divorce settlement is a binding legal agreement or order that both parents must follow – but what happens if the child and the main caregiving parent move interstate?
Does the jurisdiction for making child custody decisions move with the child?
Can you change jurisdiction, if required?
Circumstances change and one of the parents may need to move interstate for work because they commence another relationship, or for another reason.
In these circumstances, it’s important to understand Colorado law and how it applies to your child custody arrangement.
If you’re worried about child custody rights, submit a free case evaluation to our attorneys or give us a call at 720.594.7360.
Jurisdiction for an initial child custody order
Like almost all states in the U.S., Colorado adopts the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
This outlines the requirements for entering an initial custody order and to modify parenting orders.
The initial custody order is the judgment passed down at the time of the divorce.
The UCCJEA states that the child’s “home state” has “exclusive [and] continuing jurisdiction” for child custody litigation in the courts.
This means that if your child has lived with you in Colorado for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months), then a court in this state can assume child-custody jurisdiction if it has:
- “Significant connections” with the child and at least one parent, and
- “Substantial evidence concerning the child’s care, protection, training, and personal relationships”
In cases where more than one state can demonstrate the above, the courts of those states must decide which court has the strongest connections and would best serve the interests of the child.
In a typical example, let’s say Amanda has lived in Denver with her mother and father for a number of years. After Colorado enters a custody order, the mother moves to New Mexico with Amanda and they live there for a year while the father remains in Denver.
The Colorado courts would maintain jurisdiction over child custody – not New Mexico – and could modify an existing child custody order even though Amanda lived in another state.
This would remain true in spite of the fact that Colorado would no longer have initial custody jurisdiction since Amanda no longer lives here.
If the home state requirements are met, Colorado could enter custody orders even if neither parent nor Amanda is physically present in Colorado.
Another state does not have the power to remove exclusive and continuing jurisdiction. This can happen only if the state with continuing jurisdiction actively relinquishes it.
Understandably, given the complexities of the law, families often become confused about how it applies to their own situations when they relocate.
The language used in the UCCJEA (”substantial evidence” and “significant connections”) is such that parts of the law are open to interpretation.
What happens if you relocate?
The need to relocate is a common occurrence, especially in professions like the military or for people working for national or multinational organizations with locations around the country.
Many people assume that because they move to another state, the child custody jurisdiction transfers with the child to the new state.
However, this is a myth and it’s important to understand what the real situation is.
Colorado maintains jurisdiction
The UCCJEA states that a court that made the initial child custody has “exclusive and continuing jurisdiction” over the determination until either:
- A Colorado court has determined that neither the child, the parents, nor a person acting as a parent has a significant connection to the state, and substantial evidence pertaining to the child is no longer available in Colorado. C.R.S. 14-13-202(1)(a) or
- A court in Colorado or another state determines that the child, parents, and any person acting as a parent do not presently reside in Colorado. C.R.S. 14-13-202(1)(b).
So, Colorado will maintain jurisdiction over child custody unless one of the above conditions are met. For a change to occur, it requires someone to seek to change jurisdiction. It will not happen automatically.
If both parents and the child no longer reside in Colorado, the child’s new state can assume jurisdiction of the case but it will need to be transferred over. This means filing a petition in the new state to get the Colorado orders registered there.
If Colorado no longer has exclusive and continuing jurisdiction, the court may only modify a child custody order if Colorado would have jurisdiction to enter an initial custody determination (i.e. it meets the “home state” status of the child once again).
Confusion with child custody
Where this gets particularly confusing is when couples have lived in the state for four or five months before filing for divorce. They mistakenly believe that because they meet the requirements for filing for divorce in Colorado (either spouse living in the state for 91 days or more) they also meet the requirement for child custody jurisdiction.
However, as we have seen, there is a requirement to be resident in Colorado for 182 days (six months) in order for it to be considered the child’s home state.
A military couple from out of state, for instance, could live in Colorado with their children for a number of years. Upon divorce, Colorado would enter custody orders but the home state of one of the spouses would be responsible for dissolving the marriage.
Confused about child custody?
Because of the complexities of the jurisdiction law and the high stakes involved in child custody, it’s always best to speak to an experienced child custody lawyer before drawing your own conclusions about custody.
Factors like domestic violence and the financial circumstances of the parents can further confuse matters of child custody. There are frequent complications and disputes in such cases.
A child custody lawyer from Colorado Legal Group can advise you of your legal options and walk you through the process if you are looking to change jurisdiction for child custody.
Start with a free case evaluation. Call Colorado Legal Group at 720.594.7360.