Colorado’s second-highest court clarified last month that an unresolved custody dispute must terminate when one parent dies, with the surviving parent automatically receiving custody.

A three-judge Court of Appeals panel determined it was a mistake to allow an Adams County custody case between a mother and father to continue after the mother’s death, with the child’s maternal grandmother being substituted for the mother.

“When mother died, the only parties to the proceeding were mother and father,” wrote Judge Karl L. Schock in a May 22 opinion. “The dispute was limited to how to allocate the parental responsibilities between mother and father. Mother’s death ended that dispute, leaving the court with no live case or controversy over which to exercise jurisdiction.”

Noah Ryan Somma was in a custody proceeding with the mother of his child when she suddenly died in June 2022. The two parents were never married and neither had been deemed unfit to care for the child.

Shortly afterward, a magistrate suggested the child’s maternal grandmother could intervene and obtain her own allocation of parental responsibilities, the formal name for custody. The grandmother chose to do so.

In August 2022, Magistrate Rachel Catt determined the grandmother had standing to seek custody and substituted her name for the mother in the case. The grandmother then inherited all parenting time and responsibilities previously granted to the child’s mother.

Judith L. LaBuda, a retired trial judge assigned to the case, subsequently awarded the grandmother sole decision-making responsibility in key areas and adopted the grandmother’s proposed custody schedule, with some modifications.

Somma then appealed, arguing LaBuda’s order was void because the mother’s death meant there was no longer a custody dispute.

“It is rare to be able to pinpoint the precise moment at which a case’s errors begin to cascade. But such is the case, here,” wrote Somma’s attorneys. “The domestic relations court allowed, over Father’s objection, maternal grandmother to substitute for Mother after Mother died.”

The grandmother responded that she was the “de facto” parent given her involvement with the child-rearing. Therefore, a judge was permitted to find the child’s best interests were served by granting custody to a non-parent.

But the Court of Appeals panel disagreed.

Schock noted it was clearly established that one parent’s death in an ongoing divorce case triggers an end to the court’s jurisdiction to act any further on custody questions. Even though the Court of Appeals had never addressed whether the same logic applies in a custody-only matter, the panel agreed the dispute is necessarily resolved in favor of the surviving party, too.

“With only one surviving parent (who is fit), there are no longer any parental rights to ‘allocate’ because there is only one person with any such rights,” Schock wrote.

He noted the panel’s ruling did not address a scenario where the surviving parent was unfit to care for their child, or where a non-parent intervenes prior to a parent’s death. Moreover, the grandmother had an option to initiate her own custody proceeding if she met certain criteria.

But at the time of the mother’s death, “father was left with the unrebutted presumption that his care and custody of the child were in the child’s best interests,” wrote Schock.

The panel overturned the custody order and dismissed the case.

The case is In the Parental Responsibilities Concerning C.E.S.K.