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October 27, 1986

JOHN OLMO, Plaintiff,
ANNE T. OLMO, Defendant

The opinion of the court was delivered by: NICKERSON


NICKERSON, District Judge

 Plaintiff, the father of a child, brought this action pursuant to the Parental Kidnapping Prevention Act of 1980 (the Act), 28 U.S.C. 1738A (1982), asserting jurisdiction under 28 U.S.C. § 1331 (1982), giving the district courts federal question jurisdiction. He alleges that defendant, the child's mother, removed the child from New York to Colorado, and that Colorado failed to enforce a New York court custody determination.

 The Act provides in substance in subsection (a) that the authorities of every State shall enforce "any child custody determination" made "consistently" with the Act by a court of another State. By subsection (c) such a custody determination is "consistent" with the Act only if the court of the state has jurisdiction under the law of that state and one of several conditions is met, including the condition that the state "(i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State."

 The father's complaint asks this court to determine it has jurisdiction to declare the rights of the parties under the Act, to find that the child's "home state" under the Act was and is New York and that the New York custody determination is binding on the parties, and to direct the Colorado courts to enforce the New York determination.

 The defendant mother moves pursuant to Federal Rule of Civil Procedure 56(b) for summary judgment dismissing the complaint, on the grounds that (a) the court lacks jurisdiction, (b) plaintiff has not stated a cause of action, and (c) the Colorado courts' determinations are res judicata as to plaintiff's claim.

 This action concerns a battle over the custody of the parties' child, a battle they have carried on in two states. The New York court awarded custody to the father. The Colorado court awarded custody to the mother. The father has exhausted his Colorado state appeals. The issue here, apparently of first impression in this circuit, is whether the Act gives this court authority to decide which state has power to determine custody of the child.

 The uncontested facts are as follows. The child was born in New York on October 13, 1979. The parties were married on December 15, 1979. On April 19, 1982, the mother took the child and moved to Colorado. On June 23, 1982 the father filed in New York court for an order of separation and a writ of habeas corpus to deliver the child. Almost a month later, on July 19, 1982, the mother filed for divorce in Colorado. She concedes that later that same day she was served in the New York separation action.

 On October 5, 1982, on the mother's default and after receiving a referee's report, the Supreme Court in New York granted the father a judgment of separation and custody of the child. Three days later, the mother moved for an order to show cause in the New York Supreme Court to vacate the judgment. The court enjoined the father from taking any steps to enforce the custody decree. Thereafter it referred the motion to a traverse hearing.

 On March 23, 1983, the Colorado district court granted a judgment of divorce and awarded custody to the mother. Both sides were represented by counsel. The father was served in December 1982. He moved to stay the proceedings on the ground New York has assumed jurisdiction, and the court deemed the motion untimely.

 On May 4, 1983, apparently after holding a traverse hearing on April 12, 1983, the New York Supreme Court sustained the traverse, vacaced the separation judgment, and dismissed the action.

 The Colorado Court or Appeals affirmed the divorce judgment on May 31, 1983. The court held that, although the trial court should have stayed the proceeding when it became aware of the New York action, only Colorado had jurisdiction because the father did nor serve the mother in the New York action until after she filed the Colorado suit.

 On June 18, 1984, the New York Appellate Division unanimously reversed the May 4, 1983 Supreme Court order and denied the mother's application to vacate the original separation judgment.

 On June 24, 1985, the Supreme Court of Colorado denied the father's petition for a writ of certiorari. He brought ...

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