My three children and I moved to another state after my ex was arrested for physically assaulting two of our children. As a result of that assault, both a civil and criminal protection order were put in place preventing him from contacting any of us. He has not had contact with the kids for 2 years. He was just released from jail and is asking the court to modify the protection order so that he can have contact with one of our children.
Is there a way to have that hearing/issue and any visitation issue moved to the state the children and I are now living in? We are residents and have been for nearly 2 years. It would be costly to deal with this issue in a court 1500 miles away. Thank you for any advice you can give.
Yes, definitely! There is a way to have the mentioned vitiation issues resolved in the state of the children's residence; that is, transferring jurisdiction from the Colorado court to one in Ohio. But it is not simply or readily achieved.
What is involved here is a set of complex, reciprocal laws known as the "
Uniform Child Custody Jurisdiction and Enforcement Act" (UCCJEA) which both Colorado and Ohio have adopted in to state law. *
(You might properly be wondering why legislation expressly addressing ''child custody'' would have any bearing on a Colorado no contact (n/c) order. The answer is in the Act's broad definition of a "c
hild custody proceeding", meaning to include issues relating to "parenting time or visitation".)
What is the problem then? It is one of practicality and is due to the fact that Colorado the "
issuing state" had original jurisdiction to render the n/c order in the first instance! And until it is officially determined that Ohio (which according to the Act is now the children's "
home state" - the kids having resided therein for more that 6 months thus vesting Ohio with jurisdiction) Colorado the "
issuing state" - where a parent still resides - can continue to exercise jurisdiction. In other words it is necessary that Colorado is officially notified that Ohio now has jurisdiction over the children as per the UCCJEA.
So what is your recourse? First of all I don't profess to be and expert on the UCCJEA. It is best that you speak with an Ohio attorney familiar with its processes.
However, I'm reasonably confident that unless you formally appear in contest of the father's application to modify the n/c order and thus appraise the Colorado court of the change of residence, you will need to commence some proceeding in an Ohio family court for that purpose wherein the finding of its "
home state" status and being the more convenient forum can be made and the appropriate concession from Colorado is obtained. Just what proceeding that would be is problematic; perhaps a declaratory judgment (?)
And what if you do nothing and the father's application is successful in being granted parenting time and he attempts to enforce it in Ohio? What then?
The first thing that comes to mind is that the question of his fitness to exercise visitation would already have been favorably adjudicated by a court having jurisdiction over the subject matter - res judicata would attach - and the Colorado order allowing visitation would be entitled to full faith and credit in Ohio!
But again these are just thoughts. You need to consult with local counsel.