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Marriage of Brandt v. Brandt

Supreme Court of Colorado
268 P.3d 406, 2012 CO 3 (2012)
ELI5:

Rule of Law:

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), determining whether a parent 'presently resides' in the state that issued a custody order requires a totality of the circumstances analysis of their connection to that state, not merely a determination of their temporary physical presence.


Facts:

  • Christine Brandt and George Brandt divorced in Maryland in 2006, where a court issued a joint custody order for their child, C.B., giving Christine Brandt primary physical custody.
  • From 2006 to 2008, both parents and C.B. lived in Maryland.
  • In 2008, the Army transferred George Brandt to Colorado, where he later retired and settled in 2010.
  • In 2009, Christine Brandt joined the Army and was stationed at Fort Hood, Texas, moving there with C.B.
  • In April 2010, Christine Brandt was deployed to Iraq, and the parents mutually agreed C.B. would live with George Brandt in Colorado during the deployment.
  • Christine Brandt returned from Iraq in October 2010 and was reassigned to Fort Hood. The parents agreed C.B. could finish the 2010-11 school year in Colorado.
  • On April 26, 2011, Christine Brandt received military orders to return to Maryland for a new assignment, with a required report date of August 1, 2011.
  • On May 22, 2011, per their agreement, C.B. returned to live with Christine Brandt, who was still at Fort Hood preparing for her transfer back to Maryland.

Procedural Posture:

  • On May 6, 2011, George Brandt filed a petition in the Arapahoe County District Court (a Colorado trial court) to register and modify the Maryland custody order.
  • On May 25, 2011, the Colorado district court entered an order registering the Maryland decree and assuming jurisdiction to modify it, finding that neither the parents nor the child 'currently reside' in Maryland.
  • Christine Brandt filed a pro se motion to dismiss the petition.
  • The Colorado district court judge held teleconferences with the Maryland circuit court judge, who stated that Maryland retained exclusive continuing jurisdiction.
  • The Colorado district court reaffirmed its assumption of jurisdiction.
  • Christine Brandt petitioned the Colorado Supreme Court for a rule to show cause, which was granted.

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Issue:

Does a parent's temporary physical absence from a state due to military orders mean they no longer 'presently reside' in that state for purposes of terminating the state's exclusive continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?


Opinions:

Majority - Justice Hobbs

No. A parent's temporary physical absence from a state due to military service does not, by itself, terminate that state's exclusive continuing jurisdiction under the UCCJEA. The statutory term 'presently reside' requires an inquiry into the totality of the circumstances to determine a person's domicile—their permanent home to which they intend to return—rather than just their physical presence at a given moment. The court reasoned that the trial court erred by equating 'presently reside' with 'currently reside' or 'physical presence.' The purpose of exclusive continuing jurisdiction is to promote stability in custody orders and discourage parents from relocating to 're-litigate the issue of custody in a friendlier forum.' Adopting a 'physical presence' test would undermine this purpose and create absurd results, allowing jurisdiction to be divested if a parent is temporarily away for vacation, hospitalization, or military assignment. The burden of proof lies with the party seeking to divest the issuing state of its jurisdiction.



Analysis:

This decision significantly clarifies the meaning of 'presently reside' under the UCCJEA, rejecting a narrow physical presence test in favor of a broader, domicile-style analysis. It provides crucial protection for service members, ensuring their home state's jurisdiction over custody matters is not easily lost due to temporary, involuntary relocations for military duty. By establishing a multi-factor test, the ruling requires lower courts to conduct a more thorough factual inquiry before assuming modification jurisdiction, thereby reinforcing the UCCJEA's core principles of stability and the prevention of interstate forum shopping. This precedent will guide courts in all UCCJEA states when dealing with families, particularly military families, who have connections to multiple states.

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