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In re Petition of M.M.V.

2020 COA 94. No. 19CA0759. Family Law—Uniform Child Custody Jurisdiction and Enforcement Act—Stepparent Adoption—Jurisdiction.

June 11, 2020

An Arizona court issued an order dissolving the parents’ marriage and later issued orders restricting father’s parenting time, awarding visitation to the paternal grandparents, and authorizing mother to move to Colorado with the child. Mother later married stepfather. Stepfather filed two petitions, one to adopt the child and one to terminate the child’s legal relationship with father. Father moved to dismiss the petitions under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Parental Kidnapping Prevention Act (PKPA), arguing that the Arizona court had not declined jurisdiction, and therefore the Colorado court lacked jurisdiction.

Mother asked the Arizona court to decline jurisdiction, and the court granted her request. Based on that order, the magistrate in the Colorado case determined that the Colorado court had jurisdiction to hear the petitions. Thereafter, the Arizona court partially reconsidered its determination, and by agreement of the parties, the Arizona court retained jurisdiction over grandparents’ visitation rights and severed that issue into a separate case.

Shortly thereafter, the Colorado magistrate held a hearing on the petitions. At the start of the hearing, father objected to the magistrate exercising jurisdiction. The magistrate determined that Colorado had jurisdiction, and ruled that termination and stepparent adoption were a single proceeding and the UCCJEA did not apply to adoption proceedings. Moreover, even if the UCCJEA applied, the Arizona court’s reconsideration order was entered without jurisdiction because the magistrate had already begun exercising Colorado jurisdiction by that time. The magistrate terminated father’s parental rights and granted the decree of adoption.

On appeal, father argued that the magistrate lacked subject matter jurisdiction under the UCCJEA and the PKPA. While the UCCJEA does not govern a proceeding that solely involves the adoption of a child, when, as here, the stepparent adoption case also requires the court to consider the termination of parental rights, the UCCJEA governs that portion of the case. Under the UCCJEA the court that makes an initial custody determination generally retains exclusive, continuing jurisdiction. Before a Colorado court may assume jurisdiction to modify an out-of-state custody order, it must communicate with the issuing court, and a record of the inter-court communications must be made. Here, when stepfather initiated the proceeding to adopt and terminate father’s parental rights, Arizona had a pending child custody proceeding. There is nothing in the record indicating that the magistrate communicated with the Arizona court before assuming jurisdiction to terminate father’s parental rights. Therefore, the magistrate lacked jurisdiction to terminate father’s parental rights.

Because the Court of Appeals concluded that the judgment must be vacated so that the magistrate can confer with the Arizona court regarding jurisdiction, it did not review whether the magistrate properly concluded that the Arizona court’s order retaining jurisdiction was not entitled to enforcement under the PKPA.

The judgment was vacated and the matter was remanded to the magistrate to determine whether the Colorado court has jurisdiction to issue a termination judgment that modifies the Arizona custody order and, in doing so, the magistrate must communicate with the Arizona court.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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