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Colorado Supreme Court Opinions
January 23, 2012

2012 CO 3. No. 11SA248. In re Marriage of Brandt.
CRS §§ 14-13-202 and -203—Interpretation of the Term “Presently Reside”—Modification of an Out-of-State Child Custody Order—Uniform Child Custody Jurisdiction and Enforcement Act—Burden of Proof on Party Asserting That the Issuing State Lost Exclusive Continuing Jurisdiction.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides that the issuing state has exclusive continuing jurisdiction over its child custody order until it decides it no longer maintains a significant connection with the child or until it, or another state, makes a determination that the child and the child’s parents do not “presently reside” in the issuing state. Until either occurs, a different state may enforce, but may not modify, the custody order. 

On May 25, 2011, the Arapahoe County District Court assumed jurisdiction to modify a Maryland child custody order on the ground that neither the child nor the child’s parents currently reside in Maryland. At the time of George Brandt’s petition, the child lived in Colorado, and the mother, Christine Brandt, lived in Texas pursuant to military assignment.

The Supreme Court disagreed with the trial court’s ruling. The statutory term “presently reside” is not equivalent to “currently reside” or “physical presence,” the two notions on which the trial court based its order assuming jurisdiction to modify Maryland’s child custody decree. Instead, the court’s determination should be based on an inquiry into the totality of the circumstances that make up a person’s permanent home—“domicile”—to which he or she intends to return to and remain. Therefore, the Court concluded that the appropriate legal standard to be applied in determining whether the issuing state lost exclusive continuing jurisdiction based on non-residency involves application of a totality of the circumstances test. Factors to be weighed in making the residency determination, a mixed question of fact and law, include but are not limited to: the length and reasons for the parents’ and the child’s absence from the issuing state; their intent in departing from the state and returning to it; reserve and active military assignments affecting one or both parents; where they maintain a home, car, driver’s license, job, professional licensure, and voting registration; where they pay state taxes; the issuing state’s determination of residency based on the facts and the issuing state’s law; and any other circumstances demonstrated by evidence in the case. The party asserting that the issuing state has lost exclusive continuing jurisdiction bears the burden of proof. Accordingly, the Court reversed and vacated the district’s court’s order assuming jurisdiction, and remanded the case for further proceedings.

Colorado Supreme Court Opinions