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With today's increasingly mobile society, one of the most hotly-contested areas of post-divorce litigation in Colorado has become the issue of whether a parent can relocate out of Colorado with the children (also known as "removal from Colorado"). This is especially true in El Paso County, with its numerous military installations and tens of thousands of military personnel.

While a Colorado divorce or legal separation is pending, Colorado law prevents one party from removing the children from Colorado, even temporarily, without either permission from the other party or from the Colorado family law judge. Once a Colorado divorce has been granted, parties can take the children out-of-state for visits (unless prohibited by the decree), but permanent removal still takes permission - and that permission is increasingly hard to obtain.

In Colorado divorce, legal separation, annulment, and paternity cases involving children, the law concerning child custody & visitation has long recognized that the parents should not be geographically tied to one-another. Just as the parent without custody ("primary residential responsibility") is free to move at will, the parent with the children has traditionally been able to move as well. However, in those cases Colorado courts balance the right to move with the inevitable decrease in parenting time for the parent who remains in Colorado.

 

Colorado Requirements for Relocation

When the majority residential parent, or a co-equal parent with 50/50 parenting time seeks to relocate with the children to a location which substantially changes the geographical ties between the children and the other parent, under C.R.S. 14-10-129(1)(a)(II) the parent seeking relocation must, as soon as practicable, provide the other with:

  1. Written notice of the intent to relocate,
  2. The location where the party intends to reside,
  3. The reason for the relocation, and
  4. A proposed revised parenting plan.

 

Removal Hearings

Hearings on child relocation are given priority on the Colorado family law court's docket. At that hearing, the judge must decide whether the proposed relocation is in the children's best interests.

A recent Colorado Supreme Court decision, In re: the Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005), held that no presumptions in favor of either parent apply in a removal case. This means that there is no presumption that the child remains with the primary caregiver, which would place the burden on the other parent to try to stop the removal, and similarly, there is no presumption in favor of the parents remaining in close proximity, which would place the burden on the parent wishing to relocate.

 

Criteria for Relocation

There is a long list of factors in C.R.S. 14-10-129(2)(c) the court is required to consider at a removal hearing, including:

  1. The reasons why the party wishes to relocate with the child;
  2. The reasons why the opposing party is objecting to the proposed relocation;
  3. The history and quality of each party's relationship with the child since any previous parenting time order;
  4. The educational opportunities for the child at the existing location and at the proposed new location;
  5. The presence or absence of extended family at the existing location and at the proposed new location;
  6. Any advantages of the child remaining with the primary caregiver;
  7. The anticipated impact of the move on the child;
  8. Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
  9. Any other relevant factors bearing on the best interests of the child.

 

Relocation within Colorado

A relocation does not just mean moving out of state - any move which substantially changes the geographical ties between the child and the other party requires consent from the other party or permission from the court.

As an example, even a move from one suburb to another within the same metropolitan area could separate the parents by as much as 45 minutes or more.  If both parents have overnights on school nights, it would result in either (1) the children having a lengthy commute twice per day when with one parent, or (2) one parent loses school-night overnights.  Thus, this relocation would trigger the permission requirements of C.R.S. 14-10-129.

However, if the other parent only has weekend parenting, Colorado divorce courts are usually more lenient with requests to relocate within the state.

 

Removal As Part of Initial Custody Determination

If a parent wishes to move the children to a new location as part of the initial custody determination, the Colorado family law court is required to accept where each party wants to live, then make appropriate parenting time decisions which are in the best interests of the children.  Spahmer v. Gullette, 113 P.3d 158 (Colo. App. 2005).

What this means in plain English is that the Court cannot require a parent to live in a specific location, but must, in essence, pretend that the parent has already relocated to his/her desired location, then make an appropriate custody determination.  So if, immediately upon a divorce or legal separation being completed, a parent wants to leave, it's not a relocation case, but simply part of the initial custody determination, and the only standard is best interests of the children.  So the procedure and criteria outlined by C.R.S. 14-10-129 do not apply, and instead, the Court only considers the "best interests of the children" under C.R.S. 14-10-124.

 

More Information

ColoradoDivorceMediation.com has an excellent article on relocation.

 

Have a CO divorce or custody case? Black & Graham can help.

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