Do I Need a Lawyer in the State That My Child Was Born In, or Can I Use a Lawyer in My Local State?

Category: Family Law FAQ

Most cases involving child custody, or “allocation of parental responsibilities,” in Colorado involve parents and children who currently reside in the state and plan to stay for the foreseeable future. However, whether due to military duty or personal preferences, separated or divorced parents sometimes end up living in different states, creating confusing situations with regard to their children’s futures.

If you are currently involved in a custody dispute across state lines, you may be wondering whether you can hire a lawyer and pursue legal action in your current state of residence. While interstate child custody cases are often complex, the simple answer here is that you can hire a lawyer in your home state, but may need to file motions in another state depending on the circumstances.

Let’s examine some of the elements that determine which state or states have the authority to make decisions about parental responsibilities when children and parents live in different locations.

Interstate Custody Disputes and a Child’s Home State

If you become involved in an interstate custody dispute, the first thing you’ll need to determine is which state actually has jurisdiction over your child’s custody determinations. Jurisdiction is a legal term describing a certain locality’s authority to make lawful judgments and decisions about a particular subject matter.

Colorado has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to determine jurisdiction in cases involving child custody. Under the UCCJEA, parents can only file actions related to parental responsibilities, or custody, in the home state of their child. A child’s home state is defined as:

  • The state in which a child has lived with a parent or acting parent for at least 182 days, or approximately six months, prior to any custody proceedings; or
  • The state in which a child has lived with a parent or acting parent since birth, if the child is less than six months old

With respect to the UCCJEA, a person acting as a parent is any individual who has had legal parental responsibilities for a child for at least 182 days within a calendar year of the start of child custody proceedings.

As you can see, jurisdiction in cases of child custody generally follows the child rather than the parents. Sometimes, parents may disagree over a child’s true home state, but only one state can issue final orders regarding child custody. This ensures that competing or conflicting custody rulings do not arise in different states.

If a parent tries to file a divorce with children, or petition for allocation parental responsibilities in Colorado when the state does not have jurisdiction over the child(ren), the court cannot enter orders regarding child custody. In some cases, Colorado courts may have jurisdiction over issues like the status of the marriage (divorce) but not child custody or support determinations, so parents can sometimes be involved in family law battles across multiple states.

Initial and Exclusive Continuing Jurisdiction in Colorado

Generally speaking, a child’s home state has jurisdiction to enter initial parenting orders in a custody dispute. If Colorado is a child’s home or birth state, Colorado will be considered to have initial jurisdiction as long as:

  • Colorado is the child’s legal home state.
  • Colorado has been the child’s home state for at least 182 days prior to any custody-related legal action, and an acting parent lives there as well.
  • No other state can claim jurisdiction, or a state that could have jurisdiction declines to exercise it, and one parent has a significant connection to Colorado.
  • All other potential state courts with jurisdiction have declined to exercise jurisdiction because Colorado represents a more convenient forum.
  • No other state in the U.S. has legal jurisdiction.

Once initial jurisdiction has been established, and a child custody order has been entered in Colorado courts, the state will maintain exclusive continuing jurisdiction over child custody issues unless certain conditions are met. A parent may only claim that another state is eligible to take jurisdiction away from Colorado if:

  • Colorado courts determine that neither the child nor an acting parent has a significant connection to the state any longer.
  • Colorado courts or other state courts determine that neither the child nor an acting parent currently resides in Colorado.
  • Another state attempts to modify a parenting order, and Colorado is not found to hold initial jurisdiction over custody determinations.

If none of the above criteria are met, individuals in another state cannot simply claim their home state has jurisdiction over Colorado’s exclusive continuing jurisdiction, although there are limited exceptions.

If Colorado enters initial custody orders and a parent is able to from Colorado to another state with the child, Colorado courts would still have exclusive authority to modify existing custody orders as long as one parent remains in Colorado. However, states can voluntarily transfer jurisdiction if another state is deemed a more appropriate forum for litigation through consideration of the following factors:

  • The presence of domestic violence, especially if one state is safer for the child
  • The amount of time a child has lived in one state, and the distance between each parents’ home state
  • The financial circumstances and other agreements of each party
  • The location of viable case evidence and ability of each state to resolve an issue
  • The familiarity of each state’s courts concerning the details and facts of a case

How the Family Law Attorneys of Halligan LLC Can Help

Child custody disputes are typically emotional, and the relevant legal considerations are often difficult to understand for the unfamiliar. Fortunately, there’s no need for you to face your troubles alone. The professional resources, empathetic communication, and personalized attention you’ll receive from the legal team at Halligan LLC can help you secure the best possible outcome for you and your family.

We’ve successfully handled hundreds of family law cases throughout Colorado, and no matter how complex your situation may be, we want to help you, too. Call us at (720) 608-2361 or fill out our online contact form to schedule your initial consultation now.

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