Members of the Colorado Supreme Court signaled strongly on Tuesday that a father deserved some avenue for challenging a temporary child custody order that no lower court believed it could review due to the unusual circumstances of the case.

Because the appeal involved a child welfare matter, neither the underlying filings describing the case nor the prior judicial orders are publicly available. However, the discussion during the Supreme Court’s oral arguments outlined the basic dilemma for a father identified as T.L.P.

An Arapahoe County magistrate issued a temporary custody order in a child neglect case, transferring T.L.P.’s child out of state to the mother. The Department of Human Services then successfully moved to dismiss the case. T.L.P. filed a petition asking a district judge to review the temporary custody order, but the judge ruled it was unreviewable because the case had been dismissed.

The Court of Appeals similarly concluded it could not hear the challenge, leading T.L.P. to seek the Supreme Court’s intervention.

A majority of the justices seemingly agreed that parents in T.L.P.’s shoes should be able to challenge a temporary custody order that, due to procedural oddities, is simultaneously void and functionally the final decision for the case.

“It’s just very troublesome to me that this gentleman loses the custody of his child and has no right to appeal it,” said Justice Brian D. Boatright.

“Or even to get a district court review. I mean, he tried to get the district court to review it and he couldn’t even get that,” added Justice Carlos A. Samour Jr. “And then he goes to the Court of Appeals and it’s not reviewable there either. It just boggles the mind. You have somebody here, and you’re saying, ‘Well, it’s a temporary order.’ Well, it doesn’t feel temporary to the father.”

Some members of the court questioned whether the custody issue should be litigated separately through a new domestic relations case. Attorney Andrew A. Gargano, representing T.L.P., replied that his client would be on his own in that venue.

“I’m appointed counsel. Father just can’t afford counsel in DR court,” he said.

Justice Susan Blanco wondered why T.L.P. would want child neglect proceedings to continue.

The county “clearly wants this case to be done, and so does father. He just wants his child to return,” said Gargano. “He just wants it to reopen so we could look back at what happened.”

Alison Bettenberg, representing Arapahoe County, acknowledged that in retrospect, the county probably should have asked the district judge to review the magistrate’s custody order. However, she cautioned about keeping a child neglect case open for the sake of a custody dispute.

“But he necessarily has to appeal the dismissal in order to resurrect the issue about the (temporary) order. That’s the conundrum,” said Chief Justice Monica M. Márquez.

“I’m not a fan of using the word ‘gamesmanship’,” added Justice Richard L. Gabriel. “I’m not accusing you of gamesmanship. But I’m concerned about the risk of gamesmanship down the road so a hypothetical (county) can come in down the road, get what it wants, walk away, and say, ‘Gotcha. No appeal.’”

Other justices appeared willing to reject the idea that T.L.P. should file a separate case on his own to dispute custody.

“If somebody, for example, doesn’t have the financial ability or the legal know-how to go fight and get their kid back — we’ve moved the kid to another state and let’s just assume the person is in the most vulnerable place possible as a parent — we didn’t put things back to the physical status quo,” said Blanco. “So, if he can’t go get the kid back, he doesn’t have the financial resources, what is dad supposed to do?”

Boatright suggested that it was possible to avoid a flood of appeals for temporary custody orders if the Supreme Court decided to limit the availability of an appeal solely to circumstances that unfolded in T.L.P.’s case.

“It’s a mess,” he said.

The case is T.L.P. v. People.