One of the most contested issues when it comes to post-decree decisions in family law is relocation. In an ideal world, parents would remain within close distance of each other so that children have access to both parents, but the ideal is not always the case.
Many times, a new job or life change will make it so that one parent needs to relocate outside of Colorado with the children. However, what happens once this move is announced is where the problems arise.
The terminology surrounding who makes decisions for the children and where they live vary from state to state. In Colorado, “custody” is referred to as parental responsibilities.
Parental responsibility is divided into two parts, the first of which involves decision-making and the second involves parenting time.
Decision making can be joint or sole, and it involves which parent makes the major decisions for the child.
Parenting time involves the time the child spends with each parent.
1. Pre-Decree Relocation
If a divorce or legal separation matter is pending and is in the pre-decree phase, Colorado law prohibits one party from removing the children from the state, even if it is for temporary purposes, unless the other party agrees or unless a Colorado family law judge allows the move.
If a parent needs to relocate and the matter has not been finalized, a request will need to be made with the court. That parent should be prepared for the judge to deny the request until the matter is finalized.
2. Requirements For Relocation
After the initial parenting responsibilities is made and entered into the divorce decree, if the majority residential parent or co-equal parent needs to relocate with the children to a location which is said to change the geographical ties between the children and the other parent, the relocating parent needs to do the following:
1. Submit a motion to relocate to the court and provide notice of his or her intent to relocate to the other party;
2. Provide the location where the party intends to live;
3. Provide the reason for this relocation; and
4. Give a proposed revised parenting plan to the other parent.
At this point, the other parent has a chance to either consent to this move, work with the other parent on an equitable revised parenting plan, or object officially in court.
3. Relocation Hearing
If the other parent objects to this relocation, the family court will hold a relocation hearing. Because of the pressing nature of relocation, these hearings tend to be given priority when placed on the court’s docket.
In the case of In re: the Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005), the Colorado Supreme Court held that no presumption exists in favor of the relocating parent or the other parent in a relocation case.
What this means for the parent seeking the relocation is that just because the child is with the primary caregiver who is wanting to move does not mean that it is presumed the child should stay with that parent. Further, this helps the other party who is not relocating is not placing a burden on them to try to stop the removal.
There is also no presumption in favor of keeping the parents in close proximity of each other which puts an unfair burden on the parent needing to relocate. Colorado family courts understand that life happens, and, as a result, moves happen, as well.
The key for the court is to determine what is in the best interests of the children involved.
4. Relocation Criteria
The law provides a list of factors the court must consider when determining what decision to make when it comes to relocation. These factors are listed in C.R.S. 14-10-129(2)(c) and include:
• The reason the relocating parent wishes to relocate with the children;
• Why the other side objects to this proposed relocation;
• What opportunities in terms of education and growth and development exist for the children at the existing location and at the new location;
• The history and quality of each parent’s relationship with the child since the most recent order;
• The presence or absence of extended family at the current location and at the new location;
• Any advantages that would exist in keeping the child with his or her primary caregiver;
• What the anticipated impact will be on the children;
• Whether the court can put together a reasonable parenting time schedule with the requested change; and
• Any other relevant factors that play into the best interests of the children.
5. Considering The Type Of Relocation
One factor the court considers is whether the relocation is in state or out of state. A relocation does not always mean the child is moving 100 miles away. Sometimes a move from one town to another within the same metropolitan area can still cause a big enough separation as to make the current parenting time schedule difficult.
For instance, if both parents regularly have overnights with the children on school nights, making a move one hour apart could make this difficult and could cause the children to have to sit in the car on lengthy commutes between homes.
Therefore, this smaller relocation would still need to be considered under the state’s relocation laws. However, courts do tend to be more lenient when it comes to relocation requests that are within the state instead of out of state.
Call The Law Offices Of Kelli J Malcolm Today
Parental responsibility matters are complicated and moving can be a stressful matter for anyone, and we are here to help you through the process. Call the Law Offices of Kelli J Malcolm today for your free 30 minute phone consultation at 720-261-7287.