June 24, 2019

Archives for January 23, 2012

Colorado Supreme Court: Totality of the Circumstances of what Makes Up a Person’s Permanent Home Should Be Considered in UCCJEA Determinations

The Colorado Supreme Court issued its opinion in In re Marriage of Brandt on January 23, 2012.

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.

Summary and full case available here.

Finalists Selected to Fill Judgeship on Pueblo County Court

The Tenth Judicial District Nominating Commission has nominated three candidates for a Pueblo County Court judgeship created by the retirement of the Honorable Ernest J. Ruybalid, effective January 31, 2012.

The nominees for the bench are Shad Brown of Pueblo West, and David Lobato and Margaret Vellar, both of Pueblo. All finalists were selected by the Commission on January 20.

Under the Colorado Constitution, Governor Hickenlooper has until February 7, 2012 to appoint one of the nominees as County Court Judge for Pueblo County.

Comments regarding any of the nominees can be emailed to the Governor’s Office.

Tenth Circuit: City Failed to Justify Ban on Sex Offenders in Libraries; Appellate Court Bound by District Court Record

The Tenth Circuit Court of Appeals published its opinion in Doe v. City of Albuquerque on Friday, January 20, 2012.

The Tenth Circuit affirmed the district court’s decision. Respondent, “a registered sex offender, brought a facial challenge under the First and Fourteenth Amendments to a ban enacted by the City of Albuquerque that prohibited registered sex offenders from entering the City’s public libraries. The district court denied a motion to dismiss brought by the City and ultimately granted summary judgment in favor of [Respondent]. The court concluded that the ban burdened [Respondent]’s fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert [Respondent]’s contention on summary judgment that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum. The City appeals both the denial of its motion to dismiss and the grant of [Respondent]’s summary judgment motion.

Through procedural error on the part of the City, the Court was forced to affirm the decision. The City, “relying on a mistaken interpretation of case law regarding facial challenges, erroneously contended that it had no burden to do anything in response to [Respondent]’s summary judgment motion. Consequently, the City failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information.” Had the City done so, the Court stated that it would not be “difficult to imagine that the ban might have survived [Respondent]’s challenge,” because the Court recognizes the City’s significant interest in providing a safe environment for its library patrons, especially children. As an appellate court, however, it was bound by the record and the law, and affirmed.

Tenth Circuit: Unpublished Opinions, 1/20/12

On Friday, January 20, 2012, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Unpublished

Moredock v. Comm’r of Internal Revenue

Ruston v. United States

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: No Opinions, 1/19/12

On Thursday, January 19, 2012, the Tenth Circuit Court of Appeals issued no opinions.