The Disappearing Parent and Child

I had an interesting case finish up the other day involving a parent who would not let the other parent see their child.  The parties were not married and did not have an existing court case prior to the one I filed.  To make matters worse, the parent with the child had disappeared locally, so my client could not find the child.  So, I though I would write a bit on one way to approach such a situation.

These types of cases pose many difficulties and each, though similar, are always different in their own way.  First, I believe it is a good idea to quickly file a Petition for Allocation of Parental Responsibilities ("APR") which in Colorado is a child custody case.  Why? Because it is important to at least get the case filed before anything else in order to better control the flow of the case as the Petitioner's counsel (A separate abduction action could also be filed, but that is another topic).   In Colorado, the first party to either file or serve the other party is the one who starts the action.  I always file first and serve later because it increases the chances of "winning" the race to the courthouse.  An initial hurdle in these disappearing cases is serving the missing party.  In custody cases, the Petitioner normally serves a copy of the Petition and Summons on the Respondent, which in turn gives the court personal jurisdiction over the Respondent.   However, where the Respondent cannot be located, a different legally recognized method of service must be used.

Service by mail or publication is often used in divorce cases because they are considered in rem proceedings.   What constitutes an in rem proceeding is another topic, but for our purposes, divorces are considered in rem and child custody cases are not.  The kicker is that child custody orders could be made in a divorce case with publication service because the court would have jurisdiction to do so (there are some additional findings needed here as well, but at least it can be done), but it wouldn't have jurisdiction to make child custody orders in a child custody case if service was through publication.  Go figure.

So, if the Respondent can't be served personally because they can't be located, and service through publication is not available because child custody cases are not in rem proceedings, how can you get service?  In my situation,  I ended up using a little-known and rarely used service-of-process rule which is allowed under Colorado law.   To that end, I filed a motion for substituted service "on a person reasonably calculated to give actual notice to the party on whom the service is to be effective."  The substituted service was made on the Respondent's mother, the child's grandmother.  Now there were many other hoops to jump through in order to be meritorious on the motion (which I was), but the interesting point here is that when all else fails, service of the action can be made on someone that is likely to know where the Respondent is and is likely to let them know about the service.  This is very powerful.

Now that service is effective the case should proceed as other custody cases do.  However, what happens if the Respondent never comes to court?  At first, it may seem fortuitous because now you get to argue your case to the court without any opposition.  The problem is what to do with the order you get?  For instance, I received a favorable custody ruling but what good did it do my client when the Respondent (and more importantly the child) could not be located?

One method is to file a writ of assistance and habeas corpus.  This is fairly rare in family law but is perfectly legitimate to use under the circumstances.  Habeas corpus is Latin which literally means "you have the body", which (assuming the court signs off on it) directs the authorities such as the sheriff or police to produce the body (in this case, the child's body).  The writ of assistance directs the same authorities to assist the court in carrying out the order (in this case, give the child to my client once the child is produced).  So, at any time the whereabouts of the child is known, and the authorities are alerted, there is no need to go to the court to get physical custody of the child. The writ of assistance and habeas corpus acts almost like an outstanding warrant always at the ready to be used at a moment's notice.

I really need to point out here that the above is not legal advice to anyone.  I already said this in the footer below, but it needs to be emphasized here.  You should always consult with an attorney to determine whether the procedure above is applicable to your case and how to go about doing it.  It is not easy - It always takes some careful research which should accompany professional training.  However, it is a remedy that your attorney should have in their arsenal to assist you if needed.

 

 

 

 

 

2 Comments

  1. David COllins on June 8, 2017 at 9:50 pm

    Jeff, check out Colorado Revised Statutes 14-13-108 – allowing for service by publication to persons outside the state in child custody matters.

    • Jeff on June 16, 2017 at 6:45 pm

      David,
      Thanks for your response. 14-13-108 is part of the Uniform Child-Custody Jurisdiction and Enforcement Act (I’m saying this for the benefit of readers who may not know this), and can feasibly be used for persons outside the state. In my case above, the other party was in the Colorado, but not known where. It would be interesting to see how the courts would apply this statute to a person whose whereabouts are completely unknown. Imagine somehow getting “jurisdiction” through publication here along with custody orders, only to later have an attorney show up through a special appearance to contest jurisdiction on the basis that the other party was and is in Colorado so that the statute did not and does not apply. Nonetheless, your contribution is valid and well-taken. Thanks!

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