If you are involved in a child relocation situation in Colorado, it is important to understand how law will affect you. Sometimes, a parent desires or needs to move to another city and wants their children to move with them. Unforeseen situations may arise – such as when one parent’s promotion also means a transfer, or when a parent finds a new job in another city. Educational opportunities may take a parent to another city. A parent may fall in love with and marry someone who lives in another city. And sometimes, a parent just wants to move back home to have the support of family and friends post-divorce.
These situations can be very difficult for everyone involved. One parent wants the children to move with them while the other parent wants the children to stay here. More importantly, the children may face many changes to their lives whether they stay or whether they move. They may have to change homes, schools, activities, etc. Their time with each parent may change as well.
Is Relocation Best for the Children?
If you are faced with a relocation situation, it is important to think about what is best for your children and try to put your own interests aside. This applies to the parent who is contemplating a possible move and to the parent who may want to defend against a move. Often times these situations become very emotional and acrimonious because so much is at stake. Nobody wants to live far from their children and possibly see them less frequently – especially when the current schedule allows them to see their children quite often.
In Colorado, when faced with relocation cases, the court is required to consider numerous factors in deciding whether children should remain here and live primarily with the parent who is staying here or be allowed to move and live primarily with the parent who intends to move. If the relocation arises as a part of an initial determination during a divorce, paternity, or custody case, the landmark case that governs the matter is the Spahmer v. Gullette, 113 P. 3d 158 (Colo. 2005) case. On the other hand, if the relocation arises after the original orders have been entered in a divorce, paternity, or custody case in what is known as a post decree or modification situation, the case which governs the matter is the In re Marriage of Ciesluk 113 P. 3d 135 (Colo. 2005) case.
Our office represented Ms. Spahmer before the Colorado Court of Appeals and the Colorado Supreme Court. Our successful representation of Ms. Spahmer before the Colorado Supreme Court led to a change in relocation law in Colorado. This case produced the law thhat currently governs and serves as precedent for relocation cases in Colorado that arise as part of an initial determination. As a result, our office is well versed and prepared to represent parents who are either contemplating a possible move or who may need to defend against a possible move.
Guidelines for Child Relocation in Colorado
Under the Spahmer case, both parents are on equal footing in determining a parenting time schedule and whom children should live with, even if one parent plans to move somewhere else. In deciding on where children should live and the appropriate parenting time schedule in initial determination situations, the court is required to consider the following factors:
- The wishes of the child’s parents as to parenting time;
- The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
- The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
- The child’s adjustment to his or her home, school, and community.
- The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
- The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
- The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
- Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6-401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence;
- Whether one of the parties has been a perpetrator of domestic violence, which factor shall be supported by a preponderance of the evidence;
- The ability of each party to place the needs of the child ahead of his or her own needs.
Under the Ciesluk case, in post decree modification situations, the parties are not so much on equal footing. One party has already been named the majority parent and a parenting time schedule has already been set. Thus, a more stringent standard for relocation is set forth. In a post decree modification situation, the court is required to consider the same eleven factors set forth above under the Spahmer case plus the following ten factors:
- The reasons why the party wishes to relocate with the child;
- The reasons why the opposing party is objecting to the proposed relocation;
- The history and quality of each party’s relationship with the child since any previous parenting time order;
- The educational opportunities for the child at the existing location and at the proposed new location;
- The presence or absence of extended family at the existing location and at the proposed new location;
- Any advantages of the child remaining with the primary caregiver;
- The anticipated impact of the move on the child;
- Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
- Any other relevant factors bearing on the best interests of the child; or
- Whether a party has been a perpetrator of domestic violence as that term is defined in section 14-10-124 (1.3), which factor shall be supported by a preponderance of the evidence, whether such domestic violence occurred before or after the prior decree.
Barry J. Seidenfeld is a family law attorney practicing in Denver, Colorado. A tough, no-nonsense advocate for his clients, he remains compassionate and sensitive to his client’s needs. Since being admitted to the Colorado Bar in 1987, he has helped hundreds of people resolve their divorce and family law matters. www.seidenfeldlaw.com