Parental Responsibilities Concerning C.E.S.K.
2025 COA 51. No. 23CA1608. Allocation of Parental Responsibilities—Permanent Orders—Death of Party Before Entry of Permanent Orders—Motion to Intervene—Subject Matter Jurisdiction.
May 22, 2025
C.E.S.K. was born in 2020 and lived with her mother in maternal grandmother’s (grandmother) home for about the first two years of her life. Grandmother assisted mother in caring for the child. In 2021, father petitioned for an allocation of parental responsibilities (APR) for C.E.S.K., requesting “50/50 custody” of the child. A district court magistrate entered temporary orders designating mother as the primary residential parent and awarding father incrementally increasing parenting time. Over time, the magistrate found no concerns with the safety or sobriety of either parent, so it set a permanent orders hearing for July 2022. But about two weeks before the hearing, mother tragically died. Mother’s counsel notified the court of her death, and the magistrate converted the permanent orders hearing into a status conference. In the meantime, the child began living with father. Grandmother then moved to intervene for her own APR. The magistrate granted grandmother the same temporary parenting time and responsibilities that mother had. Father petitioned for district court review of the magistrate’s temporary order, but before the district court hearing had been held, father sought the return of C.E.S.K. in a habeas corpus petition. Father maintained that given the district court’s rejection of the magistrate’s order, grandmother was unlawfully confining C.E.S.K. without any right to do so. The magistrate denied father’s petition, finding that it was frivolous, and it awarded grandmother attorney fees of $1,450.79 under CRS § 13-17-102. The district court ultimately entered permanent orders allocating majority parenting time and sole decision-making responsibility to grandmother.
On appeal, father argued that mother’s death deprived the district court of jurisdiction over the case and rendered its subsequent orders void. The court of appeals determined that, similar to a dissolution of marriage proceeding, in an APR proceeding between two fit parents, the death of one parent before the entry of permanent orders divests the district court of jurisdiction and requires dismissal of the case. Here, mother’s death ended the case or controversy as to the parties, so the district court had no case or controversy over which to exercise jurisdiction. Further, without jurisdiction, the court could not create a new case or controversy by allowing grandmother to intervene rather than initiating a new APR proceeding.
Father also contended that the district court erred by awarding grandmother attorney fees under CRS § 13-17-102 in connection with his unsuccessful petition for writ of habeas corpus. Here, father’s habeas petition did not lack substantial justification because he presented a rational argument, based on the facts and the law, that the temporary order allocating primary parenting time to grandmother could not remain in effect while her standing was undetermined.
The judgment was vacated and the case was remanded to the district court to dismiss the proceeding. The order awarding grandmother attorney fees was reversed.