Opinion
No. 77-745
Decided March 30, 1978.
In action to obtain modification of the visitation rights granted the father of petitioner's child in South Dakota divorce action, the trial court dismissed the complaint for lack of subject matter jurisdiction, and petitioner appealed.
Reversed
1. PARENT AND CHILD — Custody Determination — Includes — Modification of Visitation — Uniform Act — Jurisdiction Present. By the terms of the Colorado Uniform Child Custody Jurisdiction Act, a "custody determination" includes a modification of visitation rights, and where the prerequisites of the Act have been met, a Colorado court may assume jurisdiction of the subject matter for the purpose of making such a custody determination.
2. Both Parents — Child — In Colorado — Over a Year — Jurisdictional Prerequisite — Uniform Act — Present. Where both parents and their child had been living in Colorado for over a year, substantial evidence concerning the child's present and future care must be deemed available, and, that being the necessary prerequisite to jurisdiction under the Colorado Uniform Child Custody Act, the trial court erred in finding it had no jurisdiction to consider petition to modify the visitation rights that had been designated in South Dakota divorce decree.
Appeal from the District Court of Arapahoe County, Honorable Marvin W. Foote, Judge.
Feuer, Flossic Rich, Bruce Myr Flossic, for petitioner-appellant.
No appearance for respondent-appellee.
In an action to obtain modification of the visitation rights granted the natural father, Phillip C. Bechard, to a minor son, appellant, Wanda L. Bechard, appeals from a judgment of the district court dismissing her complaint for lack of subject matter jurisdiction.
Taking the allegations of the complaint as true, Cook v. Denver, 128 Colo. 578, 265 P.2d 700 (1954), we note the following pertinent facts. The parties were married in Englewood, Colorado. Subsequently the couple moved to South Dakota and their son was born there on March 11, 1973. On March 16, 1973, the Circuit Court of South Dakota entered a decree of divorce and awarded custody of the child to Wanda with reasonable visitation rights to Phillip. Wanda returned to Colorado with the child in January, 1976. Phillip returned to Colorado in January, 1977, and is a resident of this state.
In addition to her complaint, Wanda filed exemplified copies of all of the written pleadings, orders, decrees and related documents from the South Dakota divorce proceeding pursuant to § 14-13-116, C.R.S. 1973. See also § 14-11-101, C.R.S. 1973 (1976 Cum. Supp.).
In granting Phillip's motion to dismiss the complaint, the trial court ruled that it did not have jurisdiction to modify the South Dakota child visitation order. It construed the Colorado Uniform Child Custody Jurisdiction Act, § 14-13-101, C.R.S. 1973 et seq., to permit modification of visitation rights only as an adjunct to a custody determination, and no change of custody was being sought by Wanda. We disagree with this interpretation.
[1] In § 14-13-104(1)(b), C.R.S. 1973, the Act grants the district court jurisdiction to make a child "custody determination" by modification decree if, inter alia:
"it is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents . . . have a significant connection with this state and there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships . . . ."
A "custody determination" is defined as "a court decision . . . providing for the custody of a child, including visitation rights . . . ." Section 14-13-103(2), C.R.S. 1973. (emphasis added) Thus, a modification of visitation rights is a "custody determination" under the Act. See Smith v. Superior Court, 137 Cal. Rptr. 348, 68 Cal. App. 3d 457 (1977). And, where, as here, both parents, and the child have been living in Colorado for over a year, substantial evidence of the child's present and future care must be deemed available. See Nelson v. District Court, 186 Colo. 381, 527 P.2d 811 (1974); Wheeler v. District Court, 186 Colo. 218, 526 P.2d 658 (1974).
Judgment reversed and cause remanded with directions to reinstate the complaint.
CHIEF JUDGE SILVERSTEIN and JUDGE VAN CISE concur.