Military Divorce and Family Law Jurisdiction

Are you involved in a divorce or child custody case involving military divorce and family law? (The Colorado statutory tiles for these are dissolution of marriage and allocation of parental responsibilities). An experienced Colorado Springs divorce and child custody lawyer can guide you through the legal process and assist you in exploring your options. You have one bite at the apple in the court system so make it count.

Jurisdiction is the basis of any court proceeding. In parenting matters, jurisdiction is determined by the residence or domicile of the parents as well as the length of time that children have lived in a state. For military personnel, at times jurisdiction lies in more than one state over dissolution and allocation of parental responsibilities. Where everyone resides and how long they have been there is relevant to a jurisdictional analysis. With regards to jurisdiction generally, either parent can file for dissolution of marriage or allocation of parental responsibilities. Usually, the child must have lived in Colorado for at least 182 days before a case can be filed for jurisdiction over the child. Once a child has lived in one location for six months, that is the child’s home state.

Jurisdiction over military personnel has unique aspects because military members routinely relocate due to military service; however their state of residence does not automatically change when they do. The Servicemembers Civil Relief Act provides that a military member’s residence does not change by virtue of federal military service. Spouses are also protected from automatic residency changes under the Military Spouses Residency Relief Act (MSRRA). Relocations due to military assignment changes mean that children are more mobile, which impacts the location and establishment of their home state.

Although the protections in the federal acts above apply primarily to taxation and residency, Colorado governs the ability to petition for dissolution and allocation of parental responsibilities in the state. Additionally, military families do not always reside in the same location. Sometimes a military member will deploy and their family members will not accompany them because they are not permitted to do so. A change in home state can also occur when a non-military primary parent decides to relocate to be near extended family. Further, young children may not have ever been in a single state for 182 days given the frequent military moves. It should be noted that single servicemembers on their first tour of duty are not permitted to have primary custody of a child as that would impact their ability to be available for deployment.

All states have specific jurisdictional requirements for filing a dissolution or allocation of parental responsibilities case. Most states utilize the terms divorce and child custody instead. If there are children, the dissolution action automatically encompasses the allocation of parental responsibilities. At least one parent must be domiciled in Colorado to file an action for dissolution. At times, there may be a contest between parties about whether one is a domiciled in Colorado. Various factors are considered in determining domicile; such as voter registration, driver’s license registration, vehicle registration, professional license registration, property ownership, where state tax is paid, and what state the servicemember identifies to the military for taxation purposes as their state of residency. Simply being stationed in Colorado on military orders is not sufficient to establish residency. However, an initial action for a standalone allocation of parental responsibilities action is based on the home state of the children regardless of where the parents reside.

In Colorado, child custody is called “allocation of parental responsibilities” (APR). A parent can file an APR case whether or not they are married. Allocation of parental responsibilities proceedings address how much parenting time each parent will have with the children and when that parenting time will occur. Child support is also addressed in a parenting plan. If the parents do not reach an agreement on parenting matters, the Court will decide how much time each parent will receive based on the best interest of the child legal standard. An allocation of parental responsibilities proceeding also addresses parental decision-making over major decisions involving the children; such as those involving health care, education, and religion.

Often federal law also applies to military personnel in Colorado proceedings involving children. The relevant federal law for parenting time is the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). In initial child custody determinations, the UCCJEA requires that Colorado be the child’s home state in order to have jurisdiction. The UCCJEA does not require that either parent be a legal resident of Colorado for an initial child custody determination, or even that the Court have personal jurisdiction over a parent. The jurisdictional consideration is determined by the home state of the child. Generally the home state of a child is where the child has lived for the past 182 days. After an initial custody determination has been made, Colorado retains continuing, exclusive jurisdiction over parenting matters for so long as a child or a parent continues to reside in the state.

Although a parent’s residence is not relevant for the initial custody determination, it may be relevant to determine whether a court continues to have jurisdiction. In a military context, it is not uncommon for a custodial spouse to relocate and request a transfer of jurisdiction for post-decree modifications or enforcement. The parent who relocated with the children may allege that the original state is now an inconvenient forum for enforcement or modification, as the children and evidence are now in the new state.

For post-decree modifications, only the state that issued the initial order may release jurisdiction. A request to change jurisdiction to another state is addressed through a judicial conference, and the original issuing state must release jurisdiction for another state to hear the matter. Under UCCJEA, the new state can not simply take jurisdiction without Colorado’s consent. Generally for parenting matters, if all parties have left the state then jurisdiction will transfer.

Turning Change Into Opportunity in Colorado Springs, Colorado Divorce and Child Custody

A highly knowledgeable and experienced Colorado Springs divorce and child custody lawyer can guide you through Colorado Springs divorce and child custody matters by negotiating, mediating and litigating on your behalf. You can focus on moving to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law has more than 20 years of legal experience and has written “the book” on Colorado divorce and family law – “Colorado Family Law With Forms”, published by LexisNexis, which you can find at https://store.lexisnexis.com/products/colorado-family-law-with-forms-skuSKU02903. Contact us at 719-344-5523 or complete our online scheduling request for a free 30-minute informational consultation. We also offer paid advice sessions for a more in-depth analysis of your case.