The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY October 29, 2020
2020COA152
No. 19CA2326, People in the Interest of G.C.M.M. — Family Law — Paternity — Uniform Parentage Act — Uniform Child-custody Jurisdiction and Enforcement Act
In this paternity proceeding, a division of the court of appeals
considers the interplay between the jurisdictional provisions of the
Uniform Parentage Act (UPA) and the Uniform Child-custody
Jurisdiction and Enforcement Act (UCCJEA). The child at issue
was conceived in Colorado but born in another state, and the
juvenile court determined that it lacked jurisdiction to make a
child-custody determination.
Agreeing with the juvenile court, the division concludes that,
while a paternity proceeding under the UPA may be initiated before
a child’s birth, a court must also have jurisdiction under the
UCCJEA before it may make a child-custody determination as part of the proceeding. The juvenile court here did not have jurisdiction
under the UCCJEA because that statute does not provide a basis
for jurisdiction over an unborn child. Nor does the UPA expressly
authorize a court to make a child-custody determination before the
child is born. Therefore, the division affirms the judgment. COLORADO COURT OF APPEALS 2020COA152
Court of Appeals No. 19CA2326 El Paso County District Court No. 18JV906 Honorable Linda Billings Vela, Judge
The People of the State of Colorado,
Appellee,
In the Interest of G.C.M.M., a Child,
and Concerning S.M.M.,
Appellant,
and
L.M.D.,
Appellee.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE NAVARRO Fox and Brown, JJ., concur
Announced October 29, 2020
Modern Family Law, Chelsea Hillman, Denver, Colorado, for Appellant
Law Office of Greg Quimby PC, Greg Quimby, Erica Vasconcellos, M. Addison Freebairn, Colorado Springs, Colorado, for Appellee ¶1 In this paternity proceeding, we must consider the interplay
between the jurisdictional provisions of the Uniform Parentage Act
(UPA), §§ 19-4-101 to -130, C.R.S. 2019, and the Uniform Child-
custody Jurisdiction and Enforcement Act (UCCJEA), §§ 14-13-101
to -403, C.R.S. 2019. S.M.M. (father) appeals the juvenile court’s
judgment vacating an earlier custody order for lack of subject
matter jurisdiction. Father’s child, G.C.M.M., was conceived in
Colorado, and father filed this paternity proceeding before the
child’s birth. The child was born in New Hampshire, however, and
has never lived in Colorado. Still, father asserts that the juvenile
court could make a custody determination because its jurisdiction
over this proceeding was established before the child’s birth.
¶2 We reach the opposite conclusion. While a paternity
proceeding under the UPA may be initiated before a child’s birth,
the court must also have jurisdiction under the UCCJEA before it
may make a child-custody determination as part of the proceeding.
The juvenile court here did not have jurisdiction under the UCCJEA
because that statute does not provide a basis for jurisdiction over
an unborn child. Nor does the UPA expressly authorize a court to
1 make a child-custody determination before the child is born. As a
result, we affirm the judgment.
I. Procedural History
¶3 In August 2018, father initiated a paternity proceeding under
the UPA concerning the yet to be born child. He sought a
determination that he was the child’s father and an allocation of
parental responsibilities — decision-making authority and
parenting time — for the child. When father initiated the
proceeding, he and L.M.D. (mother) lived in Colorado.
¶4 Before the child’s birth, however, two significant events
occurred for purposes of this case. First, mother moved to New
Hampshire. Second, based on the parents’ agreement, a magistrate
issued a paternity judgment declaring father the child’s parent.
¶5 The child was born in New Hampshire in mid-September
2018. Not long after, the parents stipulated to a parenting plan
that contemplated father’s exercising parenting time with the child
in New Hampshire. The magistrate adopted the stipulation and set
a permanent orders hearing for July 2019.
¶6 Before the hearing, mother moved to dismiss the action based
on a lack of subject matter jurisdiction because the child had lived
2 in New Hampshire his entire life. Mother also initiated a
child-custody proceeding in New Hampshire. After communicating
with the Colorado magistrate, the New Hampshire court stayed its
proceeding pending the resolution of the jurisdictional dispute.
¶7 The magistrate decided that a Colorado court could make a
custody determination because its jurisdiction to determine
paternity was properly invoked before the child’s birth and such
jurisdiction included an allocation of parental responsibilities. The
magistrate further reasoned that the court had not lost jurisdiction
when mother moved out of the state before the child’s birth.
¶8 Mother sought review of the magistrate’s order by a juvenile
court judge. The juvenile court concluded that the magistrate had
jurisdiction to determine paternity, but that the magistrate erred by
holding that Colorado had jurisdiction to make a child-custody
determination. The court also concluded that the UPA provides no
authority to restrain a pregnant mother from leaving the state.
Accordingly, the court (1) affirmed the paternity judgment;
(2) denied mother’s request to dismiss the case; and (3) vacated the
temporary custody order and directed the magistrate to confer with
the New Hampshire court in accordance with the UCCJEA.
3 II. Jurisdiction
¶9 Father contends that the juvenile court erred by concluding
that the UCCJEA’s provisions limit its jurisdiction to make a
custody determination in a paternity case. He argues that the UPA
confers broader jurisdiction to make custody determinations than
the UCCJEA because the UPA permits a juvenile court to acquire
jurisdiction when a paternity action is initiated before a child’s
birth. We disagree.
A. Standard of Review and Statutory Interpretation
¶ 10 Whether a juvenile court has subject matter jurisdiction over a
child-custody proceeding is a question of law that we review de
novo. Brandt v. Brandt, 2012 CO 3, ¶ 18. We also review questions
of statutory interpretation de novo. People in Interest of L.M., 2018
CO 34, ¶ 13.
¶ 11 In construing a statute, we look at the entire statutory scheme
“in order to give consistent, harmonious, and sensible effect to all of
its parts, and we apply words and phrases in accordance with their
plain and ordinary meanings.” Id. (quoting UMB Bank, N.A. v.
Landmark Towers Ass’n, 2017 CO 107, ¶ 22). When construing
statutes related to the same subject matter, we aim to avoid an
4 interpretation that would render certain words or provisions
superfluous or ineffective. Id. Instead, we adopt an interpretation
that achieves consistency across a comprehensive statutory
scheme. Id.
B. Stipulation to Initial Parenting Plan
¶ 12 To start, we recognize that mother and father initially
stipulated to a parenting plan and asked the magistrate to adopt it.
But the parties cannot confer subject matter jurisdiction on a court.
See In re Marriage of Tonnessen, 937 P.2d 863, 865 (Colo. App.
1996). Furthermore, a question of subject matter jurisdiction may
not be waived and may be raised at any time. In re Marriage of
Finer, 893 P.2d 1381, 1384 (Colo. App. 1995).
C. Statutory Frameworks
1. The UPA
¶ 13 Paternity proceedings are generally subject to the UPA. N.A.H.
v. S.L.S., 9 P.3d 354, 360 (Colo. 2000); see also In re Support of E.K.,
2013 COA 99, ¶ 9.1 Except as otherwise provided by law, the
1 A proceeding to determine paternity may also be brought under the Uniform Interstate Family Support Act (UIFSA). §§ 14-5-201, 14-5-402, C.R.S. 2019. UIFSA enumerates additional bases for
5 juvenile court has exclusive jurisdiction to determine the parentage
of a child who was conceived in the state and to make an order of
support in connection therewith. § 19-1-104(1)(f), C.R.S. 2019;
§ 19-4-109(1), (2), C.R.S. 2019. A paternity proceeding may be
initiated before a child’s birth. § 19-4-105.5(3), C.R.S. 2019.
¶ 14 Except as otherwise provided by law, the juvenile court may
determine the custody of a child who otherwise comes within its
jurisdiction. § 19-1-104(1)(c). Once a paternity proceeding is
initiated, a temporary injunction goes into effect restraining each
parent from removing from the state a child who is the subject of
the proceeding. § 19-4-105.5(5)(c)(I)(B). The court may also issue
orders concerning the allocation of parental responsibilities,
including determinations of decision-making authority and
jurisdiction over nonresidents in proceedings to establish support orders or to determine parentage. In re Parental Responsibilities of H.Z.G., 77 P.3d 848, 854 (Colo. App. 2003). It provides an alternative statutory method outside of the UPA for determining support and parentage issues. DeWitt v. Lechuga, 393 S.W.3d 113, 117 (Mo. Ct. App. 2013); see also In Interest of R.L.H., 942 P.2d 1386, 1389 (Colo. App. 1997) (holding that UIFSA remedies are cumulative to remedies available under other law). No party invoked UIFSA’s provisions in this case.
6 parenting time, as part of the proceeding. §§ 19-4-111(4),
19-4-116(3)(a), 19-4-130(1), C.R.S. 2019.
2. The UCCJEA
¶ 15 In addition to the UPA, the UCCJEA governs whether a court
has jurisdiction to address custody matters, including an allocation
of parental responsibilities. See Madrone v. Madrone, 2012 CO 70,
¶ 10. Indeed, the phrase “[e]xcept as otherwise provided by law” in
section 19-1-104(1) indicates that the juvenile court’s jurisdiction is
limited by other legislative enactments. Nistico v. Dist. Court, 791
P.2d 1128, 1129 (Colo. 1990).
¶ 16 The UCCJEA is designed to avoid jurisdictional competition
between states over child-custody matters in an increasingly mobile
society. Brandt, ¶ 19. To accomplish this purpose, the UCCJEA
establishes a comprehensive framework that a Colorado court must
follow to determine whether it may exercise jurisdiction in a
child-custody matter or whether it must defer to a court of another
state. In Interest of M.M.V., 2020 COA 94, ¶ 17. Absent emergency
jurisdiction, a court of this state may make an initial child-custody
determination only if it has jurisdiction to do so based on the
grounds identified in section 14-13-201, C.R.S. 2019. Madrone,
7 ¶ 10; see also In re Parental Responsibilities Concerning B.C.B.,
2015 COA 42, ¶ 10.
¶ 17 Section 14-13-201 contains four independent grounds for
jurisdiction to make an initial child-custody determination. People
in Interest of S.A.G., 2020 COA 45, ¶ 20 (cert. granted Sept. 14,
2020). First, a court may have jurisdiction if Colorado is the home
state of the child on the date of the commencement of the
proceeding or was the home state within 182 days of the
commencement of the proceeding. § 14-13-201(1)(a). A child’s
home state is the state in which the child has lived with a parent for
at least 182 consecutive days immediately before the
commencement of the proceeding or, for a child less than six
months of age, the state in which the child has lived from birth.
§ 14-13-102(7)(a), C.R.S. 2019. The UCCJEA prioritizes home state
jurisdiction for initial child-custody determinations. Madrone, ¶ 11.
¶ 18 The other three bases for establishing jurisdiction apply when
Colorado is not the child’s home state. S.A.G., ¶ 20. They include
“significant connection” jurisdiction, “more appropriate forum”
jurisdiction, and “last resort” jurisdiction (no court in any other
state would have jurisdiction). Madrone, ¶¶ 15-17; see also
8 § 14-13-201(1)(b)(I), (c), (d). No party asserts that any of these other
bases applies here.
D. Jurisdiction to Determine Paternity
¶ 19 We first conclude that the juvenile court properly determined
that it had jurisdiction to determine the child’s paternity.
¶ 20 The UCCJEA covers a wide variety of child-custody matters,
defined as child-custody determinations and child-custody
proceedings. M.M.V., ¶ 17. The UCCJEA defines a child-custody
determination as “a judgment, decree, or other order of a court
providing for the legal custody or physical custody of a child or
allocating parental responsibilities with respect to a child or
providing for visitation, parenting time, or grandparent or
great-grandparent visitation with respect to a child.”
§ 14-13-102(3). A child-custody proceeding is “a proceeding in
which legal custody or physical custody with respect to a child or
the allocation of parental responsibilities with respect to a child or
visitation, parenting time, or grandparent or great-grandparent
visitation with respect to a child is an issue.” § 14-13-102(4).
¶ 21 A paternity determination, standing alone, does not fall within
the definition of a child-custody determination. A paternity
9 determination decides who will be a child’s legal parent. See
N.A.H., 9 P.3d at 359. But it does not address issues concerning
custody of the child, an allocation of parental responsibilities,
visitation, or parenting time. And the UCCJEA expressly provides
that a child-custody determination does not include an order
related to child support or other monetary obligation of an
individual. § 14-13-102(3).
¶ 22 True, a paternity case is one type of child-custody proceeding
under the UCCJEA. § 14-13-102(4). The official comment to
section 14-13-102, however, clarifies that only the custody and
visitation aspects of paternity cases are child-custody proceedings
subject to the UCCJEA. § 14-13-102 cmt. In contrast, the UPA or,
in certain circumstances, the Uniform Interstate Family Support
Act governs the determinations of paternity and child support. See
id.; see also DeWitt v. Lechuga, 393 S.W.3d 113, 117 (Mo. Ct. App.
2013).
¶ 23 As a result, the UCCJEA does not limit a court’s jurisdiction to
determine paternity or order child support. See In re Marriage of
Richardson, 102 Cal. Rptr. 3d 391, 393 (Ct. App. 2009) (holding
that the UCCJEA does not limit jurisdiction over child support
10 orders); DeWitt, 393 S.W.3d at 118-20 (holding that the court could
make a paternity determination when the child was conceived in
the state even though it lacked jurisdiction to make a child-custody
determination under the UCCJEA); Harshberger v. Harshberger,
724 N.W.2d 148, 156 (N.D. 2006) (recognizing that courts have
construed the UCCJEA as applying to paternity cases only when
custody or visitation is an issue).
E. Jurisdiction to Determine Custody
¶ 24 We must next decide whether the juvenile court properly
determined that it lacked jurisdiction to make an initial
¶ 25 The UCCJEA defines a child as “an individual who has not
attained eighteen years of age.” § 14-13-102(2). And recall that,
when a child is less than six months of age, the child’s home state
is the state in which the child has lived “from birth.”
§ 14-13-102(7)(a).
¶ 26 When interpreting these provisions, we look to guidance
provided by other states because, if a statute has been adopted
from a uniform law, it should be construed to bring uniformity to
the law in the various states that adopt it. See In Interest of R.L.H.,
11 942 P.2d 1386, 1388 (Colo. App. 1997). Indeed, in the UCCJEA,
our legislature has explicitly directed courts to consider “the need to
promote uniformity of the law with respect to its subject matter
among states that enact it.” § 14-13-401, C.R.S. 2019. Moreover,
the Uniform Law Commission promulgated the UCCJEA for the key
purpose of creating consistency in interstate child-custody
jurisdiction and enforcement proceedings. M.M.V., ¶ 16.
¶ 27 Other state courts interpreting these same provisions have
concluded that the UCCJEA does not provide a jurisdictional basis
to make a child-custody determination concerning an unborn child
or a child who has never resided in the state. See Gray v. Gray, 139
So. 3d 802, 806 (Ala. Civ. App. 2013); Ark. Dep’t of Human Servs. v.
Cox, 82 S.W.3d 806, 813 (Ark. 2002); Fleckles v. Diamond, 35
N.E.3d 176, 184 (Ill. App. Ct. 2015); Sara Ashton McK. v. Samuel
Bode M., 974 N.Y.S.2d 434, 435 (App. Div. 2013); Mireles v. Veronie,
___ N.E.3d ___, ___, 2020 WL 2652274 (Ohio Ct. App. 2020);
Waltenburg v. Waltenburg, 270 S.W.3d 308, 316 (Tex. App. 2008); In
re Custody of Kalbes, 733 N.W.2d 648, 650 (Wis. Ct. App. 2007).
¶ 28 For instance, the Alabama Court of Civil Appeals explained
that an unborn child cannot have a home state as the child has not
12 “lived from birth” in any state. Gray, 139 So. 3d at 806. The
Wisconsin Court of Appeals similarly reasoned that, although a
child was conceived in Idaho and the father filed for divorce from
the mother in Idaho before the child’s birth, Wisconsin was the
child’s home state under the UCCJEA because the child had been
born in that state and had lived there from birth. Kalbes, 733
N.W.2d at 650. Likewise, in interpreting the UCCJEA’s
predecessor, the Arizona Court of Appeals observed that the statute
did not contemplate the in utero period of time in determining a
child’s home state. In re Marriage of Tonnessen, 941 P.2d 237, 239
(Ariz. Ct. App. 1997).
¶ 29 We recognize that the Kentucky Court of Appeals has reached
a different conclusion. In interpreting UCCJEA’s predecessor, the
court held that, when a marriage dissolution petition was filed in
Kentucky before a child’s birth, the child did not have a home state
as the time of the commencement of the proceedings. Yet, the court
concluded that, although the child was later born in Ohio,
Kentucky remained the proper forum to litigate child-custody issues
under other jurisdictional provisions of the statute. Gullett v.
Gullett, 992 S.W.2d 866, 869-71 (Ky. Ct. App. 1999). We do not
13 believe this holding comports with the UCCJEA’s preference for
home state jurisdiction based on where a newborn child has lived
since birth. See also Waltenburg, 270 S.W.3d. at 317 (disagreeing
with Gullett). Therefore, we agree with the majority of state courts
that have concluded that the UCCJEA does not provide a
jurisdictional basis to make a child-custody determination
concerning an unborn child.
¶ 30 In fact, father agrees that the UCCJEA relies on a “home state
analysis after the child is born” and there “cannot be a home state
for an unborn child.” Even so, father asserts that the UPA itself
provides jurisdiction to make a child-custody determination in this
case because the UPA expressly allows a court to establish its
jurisdiction before a child is born. We reject this argument for two
reasons.
¶ 31 First, the provisions governing initial child-custody
determinations under the UCCJEA provide the “exclusive
jurisdictional basis for making a child-custody determination by a
court of this state.” § 14-13-201(2). Thus, before a juvenile court
may make a custody determination (including an allocation of
parental responsibilities) in a paternity case, it must also obtain
14 jurisdiction under the UCCJEA. See Nistico, 791 P.2d at 1129
(recognizing that a custodial dispute arising in a UPA action was
governed by the predecessor to the UCCJEA); see also People in
Interest of M.S., 2017 COA 60, ¶¶ 22-23 (holding that, in a
dependency and neglect proceeding, the juvenile court had to follow
the procedures set forth in the UCCJEA to acquire jurisdiction
before it could issue a custody order); In re Marriage of Pritchett, 80
P.3d 918, 920 (Colo. App. 2003) (recognizing that a court had
jurisdiction to make an initial child-custody determination in a
dissolution of marriage proceeding when Colorado was the
children’s home state under the UCCJEA). Stated differently, the
jurisdictional requirements of the UCCJEA apply to child-custody
determinations regardless of the statute under which the
proceeding was commenced. See Mireles, ___ N.E.3d at ___, 2020
WL 2652274.
¶ 32 Second, while section 19-4-105.5(3) provides that a paternity
case may be commenced “prior to a child’s birth,” the UPA contains
no provision authorizing a court to make a custody determination
or an allocation of parental responsibilities concerning an unborn
child. Indeed, the temporary restraining order provision provides
15 that each party is restrained from removing a “minor child.” § 19-4-
105.5(5)(c)(I)(B). Similarly, section 19-4-116(3)(a) authorizes the
court to enter a judgment with a provision allocating parental
responsibilities “with respect to the child” and parenting time
privileges “with the child.” And section 19-4-130(1) states that, as
soon as practicable, the court shall enter a temporary or permanent
order that allocates the decision-making responsibility and
parenting time “of the child.”
¶ 33 Similar to the UCCJEA, the Children’s Code defines a child as
a “person under eighteen years of age.” § 19-1-103(18), C.R.S.
2019. This definition of a child applies only to a child after birth.
See People in Interest of H., 74 P.3d 494, 495 (Colo. App. 2003)
(holding that, after amending the applicable definition to remove
any reference to an unborn child, the General Assembly intended to
have the definition apply only to a child after birth); cf. People v.
Estergard, 169 Colo. 445, 448-50, 457 P.2d 698, 699-700 (1969)
(concluding that the prior definition of a child as a person under
eighteen “unless the context otherwise requires” included an
unborn child for purposes of determining paternity and support).
16 ¶ 34 Nor are we persuaded by father’s arguments that the juvenile
court erred by relying on Nistico and Tonnessen. In Nistico, our
supreme court recognized that the determination of a child’s home
state is based on where the child has lived since birth. 791 P.2d at
1131. And in Tonnessen, a division of this court likewise concluded
that the trial court lacked jurisdiction to determine custody of a
child who had never resided in Colorado and had another home
state. 937 P.2d at 865.
¶ 35 Father asserts that Nistico and Tonnessen are not instructive
where, as here, the paternity case was initiated before the child’s
birth. We disagree. While a paternity case may be initiated before a
child’s birth, the home-state determination must be deferred until
the child’s birth and the child’s birth state becomes the home state.
Fleckles, 35 N.E.3d at 187-88. In other words, a court does not
acquire jurisdiction to make a child-custody determination simply
because a proceeding is initiated before the child’s birth and the
court has jurisdiction over the parents. See Mireles, ___ N.E.3d at
___, 2020 WL 2652274 (rejecting the father’s claim that jurisdiction
over an unborn child was automatically established with the filing
of the complaint for divorce because the trial court had jurisdiction
17 over the mother); see also Arnold v. Price, 365 S.W.3d 455, 460-61
(Tex. App. 2011) (rejecting the father’s contention that the trial
court had subject matter jurisdiction over child-custody issues
concerning an unborn child because the UCCJEA does not apply to
unborn children and jurisdiction was proper as to the mother).
¶ 36 As a result, the principles articulated in Nistico and Tonnessen
— a child’s home state is based on where the child has lived since
birth and a court generally lacks jurisdiction to determine custody
of a child who has another home state and has never lived in
Colorado — hold true regardless of whether a paternity proceeding
is initiated before or after a child’s birth.
¶ 37 Father also claims that “the law specifically does not provide
for the scenario presented in th[is] case” because mother “was
enjoined from leaving the state with the minor child” and Colorado
surely would have jurisdiction if mother had obeyed the injunction.
But, as the juvenile court recognized, section 19-4-105.5(5)(c)(I)(B)
restrains a parent from removing a child from the state — it does
not apply to an unborn child. Indeed, the Children’s Code contains
no provision “designed to restrict the conduct of a pregnant
woman.” H., 74 P.3d at 496.
18 ¶ 38 In his reply brief, father expounds on his position. He claims
that a court has jurisdiction to issue the injunction when the
paternity case is filed, but the injunction does not come into force
until the child is born. According to father, the injunction does not
restrain a pregnant mother from leaving the state, but the mother
would be in violation of the injunction once the child was born in
another state. An injunction restraining a party from removing a
child from Colorado, however, would not apply to a child who was
born in another state and has never been in Colorado.
¶ 39 Father further asserts that the UPA must allow for expanded
jurisdiction beyond the UCCJEA because otherwise it would be
impossible for any court to acquire jurisdiction in a paternity action
before a child was born, even where the action did not address
parenting time or decision-making responsibility. As discussed,
however, the UCCJEA does not limit a court’s jurisdiction to make a
paternity determination or order child support. Rather, the
UCCJEA applies to child-custody or visitation aspects of paternity
cases. § 14-13-102 cmt.; see also M.M.V., ¶ 17.
19 ¶ 40 For these reasons, we hold that the juvenile court properly
concluded that it lacks jurisdiction to make an initial child-custody
determination.
F. Mandatory Injunction
¶ 41 Finally, father contends that the juvenile court erred by
addressing whether mother had violated the temporary injunction
because that issue was not part of the magistrate’s ruling and was
unnecessary to address the jurisdictional determination. But the
magistrate explicitly noted that, after the injunction had been
issued, mother moved to New Hampshire without permission. In
context, this was effectively a determination that the injunction
applied to an unborn child and mother had violated it.
¶ 42 Mother presented this issue to the juvenile court in her motion
for review under section 19-1-108(5.5), C.R.S. 2019. Accordingly,
the court properly reviewed that aspect of the magistrate’s ruling.
III. Attorney Fees
¶ 43 Mother requests attorney fees under section 14-10-119, C.R.S.
2019. Section 14-10-119, however, does not govern the award of
attorney fees in a paternity proceeding brought under the Children’s
Code. See In re Parental Responsibilities Concerning N.J.C., 2019
20 COA 153M, ¶¶ 43-44, 50 (applying section 19-4-117, C.R.S. 2019,
to an attorney fee request in a paternity proceeding and comparing
its differences to an award under section 14-10-119).
Consequently, we deny mother’s request.
IV. Conclusion
¶ 44 The judgment is affirmed.
JUDGE FOX and JUDGE BROWN concur.