Roberts v. District Court of Larimer Cty.

596 P.2d 65, 198 Colo. 79, 1979 Colo. LEXIS 684
CourtSupreme Court of Colorado
DecidedJune 18, 1979
Docket28519
StatusPublished
Cited by26 cases

This text of 596 P.2d 65 (Roberts v. District Court of Larimer Cty.) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. District Court of Larimer Cty., 596 P.2d 65, 198 Colo. 79, 1979 Colo. LEXIS 684 (Colo. 1979).

Opinions

MR. JUSTICE ROYIRA

delivered the opinion of the Court.

This is an original proceeding under C.A.R. 21, in which the petitioner (mother), by way of writ of prohibition, challenges the trial court’s jurisdiction to hear a motion for change of custody. We issued a rule to [81]*81show cause and now make that rule absolute.

In January 1976, the Superior Court for Orange County, California, entered a final judgment dissolving the marriage of Lori Roberts, formerly Lori Travers (mothers), and Kim Travers (father). The court granted custody of the couple’s child, Autumn Travers, to the mother and reasonable visitation rights to the father. In March 1977, the judgment was amended, by agreement, to provide that reasonable visitation would include having the child stay with the father for two months during the summer school vacation.

In January 1978, the mother and child moved from California to Oregon; the father had moved to Kansas. The father exercised his visitation rights in June, 1978. When the two-month visitation period ended, he refused to return the child to the mother in Oregon. In September 1978, the father, his second wife and the child moved to Colorado.

On October 4, 1978, the father filed, in the district Court of Larimer County, a Motion to Modify Custody Order. The mother was personally served with copies of the motion and summons in Larimer County on October 18, 1978. On October 28, 1978, the mother petitioned the district court for a writ of habeas corpus and filed a response to the Motion to Modify Custody Order.

The court scheduled a hearing to determine the issue of jurisdiction for November 15, 1978. The father appeared with his attorney; and, although the mother did not personally appear, she was represented by counsel at the hearing. As a result of the evidence presented at the hearing, the district court ruled on November 28, 1978, that an emergency situation existed concerning the immediate needs and welfare of the child, gave temporary custody to the father, denied the petitioner’s petition for writ of habeas corpus, ordered an investigation by the Department of Social Services and that a hearing be set on the father’s motion to modify the original custody order.

We note at the outset that the allegations of the father, based on his affidavit as well as his testimony at the hearing of November 15, 1978, and those of the mother, based on her affidavit and a letter from the child’s first-grade teacher in Oregon, are directly contradictory. According to the father, the child arrived in Kansas severely malnourished and with dental and other hygienic problems. In addition, the child had missed forty days of school because of the mother’s lethargy, and was thus retarded in her education. Also, the mother was unemployed, on welfare, using illegal drugs, and living with a man who sold illegal drugs.

According to the mother, all of the father’s allegations were untrue. The child had been well cared for, had received two dental checkups in the past year, and had attended school regularly. Here statements concerning the child’s academic record were supported by a letter written by the child’s first-grade teacher.

[82]*82The issue presented in this case is whether the district court should have exercised its jurisdiction to hear the motion for change of custody in light of the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), article 13 of tile 14, C.R.S. 1973.

The UCCJA requires the courts of a state that adopts the Act to recognize and enforce the custody decree of another state and to decline to modify that decree unless the other state no longer has jurisdiction. Because all parties in this case have left California, that state no longer has jurisdiction. Section 14-13-115(1), C.R.S. 1973. When the state which issued the original custody decree no longer has jurisdiction, the UCCJA confers jurisdiction on the child’s “home state,” as that term is defined in section 14-13-103(5), C.R.S. 1973, in this case, Oregon.

The UCCJA also sets forth limited circumstances under which other states could exercise jurisdiction in this matter. Section 14-13-104, C.R.S. 1973. The district court based its finding of jurisdiction here on the fact that there was an emergency which required the protection of the child from mistreatment or neglect under section 14-13-104(l)(c), C.R.S. 1973, which provides:

“14-13-104. Jurisdiction. (1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(c) The child is physically present in this state and the child had been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.”

The district court’s classification of this situation as an emergency was based on its finding that the child was “underweight, in need of dental care and attention for a child of her age.” There was no evidence before the trial court of an emergency situation which would justify the assumption of jurisdiction puráuant to section 14-13-104( 1) (c).

The court’s factual finding was based entirely upon the father’s unsubstantiated testimony. This court has stated on several occasions that a parent’s self-serving statements that his child appeared unwell are not in and of themselves enough to confer jurisdiction on the courts of this state.1 Woodhouse v. District Court, 196 Colo. 558, 587 P.2d 1199 (1978); Young v. District Court, 194 Colo. 140, 570 P.2d 249 (1977).

Although the allegations of both the father and the mother indicate that the best interests of the child mandate judicial review of the fitness of each parent to have custody of the child, that does not necessarily justify [83]*83the exercise of jurisdiction by the courts of this state.

The UCCJA is to be construed to effectuate its purpose of permitting courts to act in the best interests of the child and at the same time to eliminate “jurisdictional fishing, with children as the bait.” Wheeler v. District Court, 186 Colo. 218, 526 P.2d 658 (1974). We recognize that in cases of this nature there is often a fine balance between the best interests of the child and the selection of the proper forum in which to resolve the issues between antagonistic parents. However, the jurisdictional guidelines of the UCCJA may well coincide with the best interests of the child. Such is the instant case.

Three general purposes of the UCCJA govern the disposition of this case. First, we seek to avoid conflict with the courts of other states concerning custody determination. Section 14-13-102(1 )(a), C.R.S. 1973. Second, we seek to deter the unilateral action of a parent in contravention of an existing child custody decree in order to obtain a different custody decree. Section 14-13-102(l)(e), C.R.S. 1973. Lastly, we seek to promote cooperation with the courts of other states in order to ensure that the determination of custody is made by the court which can best decide the case in the interest of the child.

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Bluebook (online)
596 P.2d 65, 198 Colo. 79, 1979 Colo. LEXIS 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-district-court-of-larimer-cty-colo-1979.