Moving Away - Relocation

Summary:  Based on 2005-2006 Colorado Supreme Court decisions, a party who wishes to move away from the geographic area where the other parent lives is permitted to move. However, generally an independent third party professional will be hired to investigate and recommend a parenting plan to the court. The trial court’s analysis will differ, depending on whether the relocation occurs pre-decree or post-decree. The trial court will decide whether the child(ren) can be “removed” to live with the relocated parent. There is no longer a presumption that the child should not move with the relocating parent.

A Parent May Move Away, But Not Necessarily Take The Children

In 2005 and 2006, the Colorado Supreme Court issued opinions on whether a parent may leave the state of Colorado or otherwise move further away (relocate) such that the move will impact parenting time and responsibilities. Part of this analysis is whether the parent who relocates can “remove” the child from the geographic area where the other parent lives.

The result of these recent Supreme Court opinions is that a parent may relocate, even though the relocation will impact parenting time. The analysis is the same, whether the relocation is out-of-state or within the state, as long as the move is to a location such that the move will impact opportunities for parenting time. However, the relocation by a parent who has the majority of the parenting time does not mean that the child can be “removed” to live with the parent who is relocating.

The analysis of what happens to parenting time differs, depending on whether the request to relocate occurs at the time of the divorce or later after the divorce is final.

Analysis at the Time of the Divorce.

If the analysis is being conducted for permanent orders at the time of a divorce or other allocation of parenting responsibilities proceeding, then the parent wishing to relocate is permitted to do so. Spahmer v. Gullette, 113 P.3d 158 (Colo. 2005).  Both parents have a constitutional right to live wherever they want to. The Supreme Court ruled that the trial court was in error when it ordered mother to live in Colorado. Instead, the court ruled that Mother could move out of state, and the court must then allocate parenting responsibilities in accordance with the best interests of the child. The court held that a trial court has the authority to prevent the removal of the child from Colorado during the pendency of the case, before permanent orders are entered.

However, in permanent orders the court must accept the location where each parent wants to live and fashion a parenting plan taking into account those locations. Thus, the court must determine where the child will live considering all of the “best interests” of the child factors listed in CRS 14-10-124.

Analysis after the time of the Divorce.

The analysis where one of the parents has decided to move from Colorado after permanent orders have entered is different. For example, if a divorce is finalized in 2004, and in 2006 one of the parties wants to move 300 miles away, then the following analysis should be used.

The Colorado Supreme court’s 2006 decision in Ciesluk holds that there is no longer a presumption that a parent cannot relocate. There is no longer a presumption that a child is better with both parents locally, rather than one locally and the other in a different geographic location. In re the Marriage of Ciesluk, 113, P.3d 135 (Colo. 2006). The court held that a trial court must specifically analyze the various factors in CRS §14-10-129 to make a post-decree determination of parenting time in relocation cases.

The CRS §14-10-129(2)(c) relocation factors are:

(I) The reasons why the party wishes to relocate with the child;

(II) The reasons why the opposing party is objecting to the proposed relocation;

(III) The history and quality of each party’s relationship with the child since any previous parenting time order;

(IV) The educational opportunities for the child at the existing location and at the proposed

new location;

(V) The presence or absence of extended family at the existing location and at the proposed

new location;

(VI) Any advantages of the child remaining with the primary caregiver;

(VII) The anticipated impact of the move on the child;

(VIII) Whether the court will be able to fashion a reasonable parenting time schedule if the

change requested is permitted; and

all other “best interests” factors enumerated in section 14-10-124(1.5)(a).

In a November 2006 Colorado Court of Appeals case, a wife who was in the military was allowed to move from Colorado with her children in a post-decree proceeding even though she shared 50-50 parenting time with her former husband. In re the Marriage of DeZalia (05CA2455) (Colo.App. 2006). The Court used the “best interests” factors in CRS §14-10-124(1.5)(a) and 14-10-10-129(2)(c). I believe that this was a close case and the Court was affirming what the Colorado Springs trial court did. A Child & Family Investigator was used.

Because each case will be very fact-specific, the trial court is likely to require the parents to hire a Child & Family Investigator to conduct an investigation and make a recommendation to the court whenever one of the parents wishes move away from the geographic area where the other parent lives. The trial court must then make orders as to which parent the child will live most of the time. There is no longer a presumption that the child should not move.