It's every parent's worst nightmare – as the channels of communication break down and your divorce becomes more heated and antagonistic, your spouse might take custody matters into his own hands. He might pick up your child for visitation under the terms of a temporary order and never come back. The only bright side to this horrifying scenario is that both Colorado law and federal law are on your side – with one exception that you can easily fix.
If You Don't Yet Have a Custody Order
You and your child are at your most vulnerable if no one has actually filed for divorce yet and there is no existing custody order. In this case, both you and your spouse have equal custody rights. He can take your child anywhere he likes, with or without your consent, and he's not breaking the law. If you've filed for divorce, however, this changes things. Even if you haven't asked the court for a temporary custody order yet to set parenting terms while your divorce is in process, he may be guilty of kidnapping if you have a legal action pending at the time he takes your child.
Uniform Child Custody Jurisdiction and Enforcement Act
If you haven't filed for divorce yet, your ex can't go to another state and file there, asking the court to give him custody. Along with 48 other states, Colorado has adopted the Uniform Child Custody Jurisdiction and Enforcement Act. The lone holdout is Massachusetts, but a bill was introduced in 2014 to adopt the act in this state as well. Under the terms of the UCCJEA, no other state has jurisdiction to decide custody until your child has lived there for at least six months. During this six-month period, you can file in Colorado, which continues to have jurisdiction because you still live there. If your spouse files for divorce elsewhere, the court can end your marriage – assuming you haven't already filed in Colorado – but it cannot address custody as part of the litigation until six months have passed. All other UCCJEA states must honor the custody terms of any litigation you begin in your state.
Abduction Prevention Orders
If you're concerned that your spouse might abduct your child but he hasn't acted yet, Colorado law gives you recourse. Under the terms of the Uniform Child Abduction Prevention Act passed by Colorado in 2007, you can ask the court for an abduction prevention order. The judge can tailor the order to your family's needs and unique circumstances, and bar your spouse from taking your child out of the state or out of the country. The judge can prohibit him from picking your child up at school or daycare if you are worried that he'll take her from there. Your child's name can be placed with the U.S. Department of State so your spouse can't get a passport for her, and if she already has a passport, the judge can require that it be turned over to the court. You must provide the court with some evidence that your ex is likely to take your child and run, however. This might include quitting his job, closing bank accounts or gathering your child's school and medical records in anticipation of relocating with her.
Contact the Authorities
If your spouse does take your child, you have every right to call law enforcement immediately. As long as your divorce is pending or you have a custody order – even a temporary order to govern things while your divorce is in progress – he's breaking the law and he could be found guilty of kidnapping. Kidnapping is a serious criminal charge. If you don't yet have an order and if you haven't filed for divorce, speak with a local lawyer to find out what you can do to initiate formal proceedings as soon as possible.