State courts at odds over child custody

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Child custody across state lines adds a new ripple to an already complicated process. Not only can this result in a dispute between parents, but a dispute between courts as well. Congress took steps to address this problem in 1980 when it passed the Parental Kidnapping Prevention Act, with the intention of setting a uniform framework for courts to determine which state has jurisdiction over a child custody case that straddles state lines.

Nevertheless, problems can still arise when two states claim to have the right to decide a case. One case went as far as the United States Supreme Court in 1988. In deciding that case, the Supreme Court ruled that, in essence, whichever state first claimed jurisdiction won provided that state complied with the PKPA. On the other hand, if the first state does not comply, then another state is not required to give credence to the first state’s actions.

This came up again in a Colorado case, In re LS, decided by the Colorado Supreme Court in 2011. Here, a child was born to a married couple in 2001 and they began residing in Colorado in 2003. In 2004, the father moved to Nebraska. That same year, the couple signed a separation agreement which stated that the child would remain in Colorado. Later in 2004, the father took the child to Nebraska for scheduled visitation and then refused to return her to Colorado. The father then filed for divorce in Nebraska and was granted custody of the child. The mother filed for divorce in Colorado the next month, while also disputing Nebraska’s jurisdiction.

A Colorado court dismissed her petition, saying that the Nebraska court had jurisdiction to decide the case. The mother continued to argue against Nebraska taking jurisdiction, which the court dismissed because Colorado had declined to exercise jurisdiction. In 2006, the mother again filed for divorce in Colorado; this time the Colorado court said that Colorado had jurisdiction and began divorce proceedings. The father then appealed the Colorado court’s decision, and the Court of Appeals ruled that even though it did not believe that Nebraska had jurisdiction, Colorado must give the Nebraska decision full faith and credit.

The case then went before the Colorado Supreme Court. The primary question was whether Nebraska’s decision had complied with PKPA. If it did, then Nebraska’s decisions on child custody were enforceable in Colorado, since Nebraska had claimed jurisdiction first. Ultimately the court concluded that Nebraska did not have jurisdiction. Under Nebraska law, Nebraska would only have jurisdiction if either it were the child’s home state or the child’s actual home state declined jurisdiction because of inconvenience to the parties. Since Colorado was the child’s home state, and since the earlier Colorado court declined jurisdiction for a different reason, the Colorado Supreme Court concluded that Colorado, and not Nebraska, was the appropriate state to determine the child’s custody. Therefore, Colorado was not required to enforce Nebraska’s decision as to that child’s custody.

As the narrative of this case makes clear, these cases can be time consuming and complex. You should not have to face such questions alone, and so the guidance of an experienced attorney can make all the difference.

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