Relocation of Children

With today's 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.

The law long recognized that parents should not be geographically tied to one-another. And just as the non-custodial parent is free to move at will, the parent with the children previously could move with little difficulty, even over the opposition of the other parent.

More recently, the law has been modified to put the focus on the best interests of the children, not the parents, in relocation cases. So while a custodial parent may have the right to move, that right is going to be weighed against the best interests of the children.

Leaving Colorado While Divorce Pending

Upon service of a summons for dissolution or legal separation, Colorado law imposes an injunction prevents one party from removing the children from Colorado, even temporarily, without either permission from the other party or from the court. C.R.S. 14-10-107(4)(b)(I)(C).

While permission to visit out of state is relatively easy to obtain, moving away from Colorado while a case is pending is extraordinarily unusual, and is the hardest permission to obtain. Graham.Law has seen it happen just a few times, when extraordinary circumstances are present.

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 judge 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. 2005).

In theory, this means the court effectively pretends that the parent who wishes to move has already moved, and decide where the kids should live. A court is not permitted to “deny” permission to relocate and require the parent to remain with the children. The judge’s options are limited to permitting the children to move, or denying permission, in which case they will remain with the other parent.

Practically speaking, courts may offer a third option - deny relocation, and order a parenting schedule based upon the parent relocating, but also ordering a different schedule as long as the parent remains in Colorado. In effect, the court says “Parent, if you move, the kids will remain with the other parent, and you’ll have vacation parenting only. But if you stay, you two will share equal parenting.” Faced with that dilemma, many parents may choose not to move - however, as discussed below, this is not an appropriate topic to ask about in court.

Since this type of relocation is part of an initial custody determination, it is not strictly speaking considered relocation. As such, the legal standard on whether the children stay or go is “best interest of the children” under C.R.S. 14-10-124, and not the more stringent criteria under C.R.S. 14-10-129 as explained below.

Colorado Requirements For Post-Decree Relocation

The most common form of relocation, and the most complicated, is a post-decree requests to remove the children - in such cases, the court previously ordered a parenting schedule, based upon both parents living in the same general area, and subsequently one parent wishes to relocate with the children.

Pursuant to C.R.S. 14-10-129(2)(c), when the parent with whom the children reside a majority of the time (but the statute also applies to an equal parent) “is intending to relocate with the child to a residence that substantially changes the geographical ties between the child and the other party” either consent from the other parent or permission from the court is required.

And in deciding whether such a move is in the best interests of the children, C.R.S. 14-10-129(2)(c) requires the court is required to not only apply the traditional factors pertaining to the best interests of the children under C.R.S. 14-10-124, but consider whether there has been domestic violence, and also consider the following factors unique to a relocation case:

1. The reasons for the relocation
2. The reasons why the other parent objects
3. The history and quality of each parent’s relationship with the child
4. The educational opportunities at the current and proposed new location
5. Whether either location has extended family
6. Any advantages of the child remaining with the primary caregiver
7. The impact of the move on the child
8. Whether the court can fashion a reasonable parenting schedule if relocation is granted
9. Any other relevant factors bearing on the best interests of the child.

Procedure for Relocation

A parent seeking to relocate with the children must provide the other “as soon as practicable” with the following:

• Written notice of the intent
• The location where the party intends to reside
• The reason for the relocation
• A proposed revised parenting plan.

If the other parent does not consent to the relocation, the parent seeking relocation files a motion to relocate, and the matter is set for a hearing. Per C.R.S. 14-10-129(1)(a)(II), “A court hearing on any modification of parenting time due to an intent to relocate shall be given a priority on the court's docket.” In the author’s experience, courts will make room in their dockets for relocation hearings, but it still may take 2-4 months instead of 4-8 months, so the parent who wants to move still needs to plan ahead.

The Colorado Supreme Court in In re: Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005) rejected earlier rulings which had made it more difficult for a parent to relocate, holding that there can be no presumptions in favor of either parent apply in a removal case. No presumption in favor of Colorado vs anywhere else, no presumption against relocation, etc.

The trial court is required to consider all of the statutory factors from C.R.S. 14-10-129 and C.R.S. 14-10-124, but is not required to actually make express findings on each factor, nor even address each in its ruling. In re: Marriage of Kumaraperu, ¶ 7, a 2019 unpublished decision from the Court of Appeals. It is sufficient for the judge to make findings on the factors he/she considers most relevant.

Note that the court order cannot simply pay "lip service" to the statute with the judge merely saying that he/she considered the best interests of the children. In a 2020 decision, a Child & Family Investigator had recommended that the mother be permitted to relocate the children to Texas with her, and after a hearing, the trial court agreed. But because the judge did not make sufficient findings to support relocation, the Court of Appeals vacated the order and remanded it to the trial court for additional findings. In re: Marriage of Tripp, a 2020 unpubplished decision.

The extent of the court's findings were a reference to the fact that it considered the statutory factors, and: "The Court relies on the factors themselves, the history of parenting time, the missed parenting time, the best interest[s] of the child, etc. The Court finds that almost all of [mother’s] family has moved to Texas and that the reason for her move is familial, and not malicious or to limit the time that Father has with the child."

The trial court erred by failing to thoroughly disclose the reasons for its decision, and discussing the facts for each relevant factor. Tripp ¶ 11. However, while the father won the battle, he likely lost the war - the judge was not directed to keep the children in Colorado - indeed, they already moved to Texas a year previously - but simply to make additional findings. This means the judge will likely hold a remand hearing, allow the parties to present updated evidence on how the child has been doing since the move, and then issue a more detailed order allowing them to remain in Texas as originally ordered!

Practical Considerations for Relocation

Even though there are no presumptions for or against relocation, all factors are not created equal. Graham.Law has litigated countless relocation cases on both sides of this issue, and can share some practical considerations:

• It is harder for a parent to get permission for a “voluntary” relocation than when relocation is required by one parent’s employer (particularly the military).
• A parent with more parenting time can better block relocation. An equal parent is in the strongest position, whereas a parent who only has alternating weekends would suffer only a minor overnight reduction if the children move by awarding most of the summer and vacation time.
• Family counts. A parent seeking to move somewhere where there is no family will have a harder time than one with lots of extended family.
• School rarely counts. Unless the child is advanced or in an IEP, most American schools are considered adequate for most children, so that factor rarely is the deciding factor.
• Child wishes matter, if the child is old enough. Recall that all of the best interest of the children factors also apply to a relocation and one of those factors per C.R.S. 14-10-124(1.5)(a)(II) includes consideration of the child’s wishes “if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.” In reality, if a teenager has strong preferences as to relocation, this factor is often the single most important one.
• Courts don’t like separating siblings. Sure, it happens if there is a substantial age gap, or two teenage children want to live with different parents, but by and large children are treated as a package deal. And if one parent has new children, the desire to keep the children together gives that parent an advantage in a relocation battle.

Asking Parent if He/She Will Move if Relocation Denied?

Child custody attorneys in Colorado have long debated this question - is it proper to ask a parent in court whether that parent will move, or remain in Colorado, if relocation is denied? The answer is "no", according to a 2018 Court of Appeals decision.

In In re: Marriage of Morgan, 2018 COA 116, the mother wanted to move to California upon the divorce being completed, and stated that intention clearly to both parenting experts, and testified to it at the permanent orders hearing. The trial court, after hearing from conflicting parenting experts, denied relocation, but ordered that mother would have equal parenting time.

The problem is that the mother was asked at trial if she would still move if relocation were denied, and she admitted she would not. This, in the trial court's eyes, made her intention ambiguous. The Court of Appeals reversed, holding that per Spahmer, the trial court is required to adhere to a parent's clearly-stated intent, rather than taking into consideration whether the parent would "abandon" the children by moving without them.

Realistically, this is a limited ruling that is interesting primarily for its impact on what is considered relevant evidence. The Court of Appeals did not order the children to move to California, but simply sent it back for new orders consistent with the law. And as long as the trial court did not order a parenting plan based upon the mother remaining in Colorado, it was still free to deny relocation, and order parenting based upon the mother actually moving. And when the mother invariably did not move, parenting could then be modified to an equal schedule anyway.

Relocation Could Result in Change of Custody

Normall, once a court determines it's in the child's best interests for one parent to be the majority residential parent, it takes "endangerment" to shift custody to the other parent. However, then the majority parent is proposing to relocate, the court could change custody to the other parent applying the more lenient "best interests of the children" standard. C.R.S. 14-10-129(2)(c).

The Colorado Court of Appeals recently found that a custodial parent's relocation from Colorado to Korea was a major move that triggered the relaxed burden of proof, and found it was in the child's best interests to award the father in Hawaii primary custody rather than the child remaining with the mother and moving to Korea. In re: Marriage of Aguero (Colo.App. 2020) (Unpublished Decision). The mother made a logical argument that since the move would not affect the father's ability to exercise parenting time, the trial court erred by applying the "best interests" standard instead of endangerment.

The Court of Appeals disagreed, finding that the move would cause major disruption to the child, notwithstanding the lack of impact on the father's time, and therefore the trial court applied the proper legal standard. Specifically, the trial court found that the

“significant changes in [mother]’s plans (social, geographic, housing, and economic) . . . in just a few months after the [permanent orders]” raised “at least some questions about the long term stability of the situation for [the child] if relocated to South Korea.”

For a complete discussion of the Aguero case, see our blog post Primary Parent Moving Results in Custody Change.

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, a relocation which could trigger a change in parenting, even if still within the same county, would also trigger the removal provisions under C.R.S. 14-10-129.

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

More Information

ColoradoDivorceMediation.com has an excellent article on relocation.

Do You Need a Child Custody Lawyer in Colorado Springs?

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