Opinion
No. 28304
Decided December 18, 1978.
Original proceeding in which mother of child seeks an order prohibiting the district court from proceeding in excess of its jurisdiction in a habeas corpus action brought by father of child in which father sought modification of child custody. Rule to show cause issued.
Rule Made Absolute
1. HABEAS CORPUS — Child Custody — Modification — Mother — Resident of England — Colorado — Lack of Jurisdiction. In habeas corpus action, Colorado district court lacked jurisdiction to consider father's application for modification of child custody where father had abducted child from child's mother, a resident of England who had been awarded custody of the child by an English court which retained continuing jurisdiction over the matter.
2. DIVORCE — Custody — England — Modification — Self-Serving Statements — Colorado Jurisdiction — Negative. Father's self-serving statements that his child appeared unwell while in custody of mother — a resident of England who had been awarded custody of the child in England pursuant to a divorce decree — were not enough to confer jurisdiction on Colorado district court to consider application for modification of child custody.
3. Habeas Corpus — Custody Cases — Uniform Child Custody Jurisdiction Act — Limitation of Discretion. Habeas corpus cases decided before the Uniform Child Custody Jurisdiction Act was enacted do not provide sufficient basis for the Colorado court's acceptance of jurisdiction in custody matter; the drafters of the Act clearly intended to limit discretion of respondent court in this type of situation, where an English court which awarded the divorce decree also granted petitioner custody of the two children of the marriage.
Original Proceeding
Grant, McHendrie, Haines and Crouse, P.C., Gary Holdeman, Susan B. Price, for petitioner.
Roath Brega, P.C., David W. Stark, for respondents.
This is an original proceeding pursuant to C.A.R. 21, in which petitioner seeks an order prohibiting the Adams County District Court from proceeding in excess of its jurisdiction. We issued a rule to show cause, which we now make absolute.
Petitioner and Richard Harold Heath were divorced in England on July 11, 1974. The divorce decree granted petitioner custody of the two children of the marriage. Mr. Heath was granted "reasonable access" to the children. He moved to the United States in 1974, and both parties have since remarried. The petitioner continues to live in England.
In July of 1977, Mr. Heath visited England. In August of that year, he abducted his son Thomas and brought him to the United States without the consent of the petitioner. Legal action taken by the petitioner in England, resulting in a May 8, 1978, court order directing Mr. Heath to return the child to the petitioner, has been ignored by him. In June, petitioner instituted a habeas corpus action in the Adams County District Court to regain custody of the child.
On June 12, 1978, Mr. Heath appeared with the child at the habeas corpus hearing and moved for a change of custody. The respondent granted the petition for the writ and at the same time assumed jurisdiction over the custody matter. The hearing on the motion for change of custody has been stayed pending our resolution of these proceedings.
The Uniform Child Custody Jurisdiction Act specifically seeks to avoid the situation with which we are here confronted. Two of the declared "general purposes" of the Act are, (1) avoidance of conflict with courts of other states in child custody matters "which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being," and (2) deterrence of "abductions and other unilateral removals of children undertaken to obtain custody awards." Section 14-13-102(1)(a) and (e), C.R.S. 1973.
Section 14-13-101, et seq., C.R.S. 1973 (hereafter, the "Act").
The respondent court assumed jurisdiction because it felt that the child and one parent have a "significant connection" with the state of Colorado. However, the respondent court disregarded sections 14-13-114 and 14-13-115, C.R.S. 1973, which require a court to recognize the valid custody decrees of other jurisdictions and not to modify such decrees unless the rendering state no longer has jurisdiction, or has declined to exercise jurisdiction. Since the Act has international application, the threshhold question is whether the English court has retained jurisdiction "founded upon jurisdictional prerequisites substantially in accordance with this article." Section 14-13-115, C.R.S. 1973.
Section 14-13-124, C.R.S. 1973.
The respondent court asserts that the "fault" concept of divorce, which is expressed in the Matrimonial Causes Act of 1973, requires the English court to consider the conduct of the parties and the wishes of the "innocent" party in making the custody decision. However, in the present posture of these proceedings, we are not concerned with the reasons for the dissolution of the marriage of the parties, but with the current best interests of their child. We must assume that upon the return of this matter to the English court it will consider the best interests of the child before it makes a determination as to custody. We note that the Guardianship of Minors Act, 1971, C. 3, § 1, requires an English court deciding custody issues to give "first and paramount consideration" to the best interest of the child involved.
The words "first and paramount consideration," applied to determining the custody of a child,
"connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare . . . ." In re L. (1974), 1 W.L.R. 250, at 263, quoting Lord MacDermott in J. v. C. (1970).
This approach is substantially the one taken by the courts of this state in determining the custody of children where various factors are taken into consideration in determining the best interest of the child. See section 14-10-124, C.R.S. 1973.
Contrary to respondents' contention, we do not interpret the English rule as requiring punishment for the parent who flouts the custody decree. As stated by Buckley, L. J., in In re L., supra, after a thorough discussion of "kidnapping" cases,
"Judges have more than once reprobated the acts of 'kidnappers' in cases of this kind. I do not in any way dissent from those strictures, but it would, in my judgment, be wrong to suppose that in making orders in relation to children in this jurisdiction the court is in any way concerned with penalizing any adult for his conduct. That conduct may well be a consideration to be taken into account, but . . . the cardinal rule applies that the welfare of the infant must always be the paramount consideration."
This is no more strict than our provision that in a custody matter a court can decline to exercise jurisdiction because of the petitioner's conduct. Section 14-13-109, C.R.S. 1973. Thus, a determination of this case by an English court should lead to a result consistent with the purposes of the Act.
[1] The English court which determined custody has continuing jurisdiction over the subject matter. Matrimonial Causes Act, 1973, C. 18, § 42(6). As there are still "significant connections" with England and the English court has not declined jurisdiction, the Act demands that an English court determine whether there should be a modification of its custody decree. Fry v. Ball, 190 Colo. 128, 544 P.2d 402 (1975).
[2] There is no evidence here of an emergency situation which would justify the district court in assuming jurisdiction pursuant to section 14-13-104(1)(c), C.R.S. 1973. Mr. Heath's self-serving statements that his child appeared unwell are not enough to confer jurisdiction on the respondent district court. Young v. District Court, 194 Colo. 140, 570 P.2d 249 (1977).
[3] Nor do traditional parens patriae powers give the district court the authority to determine this custody matter. Habeas corpus cases decided before the Act was enacted do not provide sufficient basis for the court's acceptance of jurisdiction. The drafters of the Act clearly intended to limit the discretion of the respondent court in this type of situation.
The district court has already ordered social services reports both here and in England to determine the best interests of the child. Such reports may as readily be utilized by an English court as by respondent.
The rule is made absolute, and the trial court is directed to vacate its order of temporary custody and to grant the relief requested in the Petition for Writ of Habeas Corpus.
MR. JUSTICE ERICKSON does not participate.