Can I move to Another State with my Children?
Generally, moving out of state with your children is going to require either permission from the other parent or an order from the court. To move without either can be extremely problematic, if not disastrous in your Denver child custody case.
If you are considering moving from Colorado with your children there are various statutes and relevant case law which may apply, depending on your situation and the facts at hand. If there is no divorce or custody case pending it is not “illegal” to move with your children. However, for the 6 months following your departure Colorado will still maintain jurisdiction over your children for “parental responsibility” (child custody) purposes. Thus, the other parent will be able to file a case regarding custody during that time. If you leave without permission, he or she may also file an emergency motion with the court seeking relief under the “abduction prevention measures” statute set forth in C.R.S. 14-13.5-101. Presuming the other parent acts quickly after you leave and absent provable abuse or other dire circumstances, judges will often order people to bring the children back to Colorado while the case is pending.
Once a divorce or custody case is filed, there is an automatic, statutory injunction in place which indicates neither party may remove the children from Colorado while the case is pending unless there is permission or a court order.
If your case is pre-final orders and you are wanting the court to rule upon whether you can move out of state, with the kids, as part of the final resolution, you will need to make sure to overtly alert the court and the other side that this will be an issue to be resolved, whether through settlement or a court hearing. For pre-final order cases, the legal analysis the court will be required to employ is set forth in a case called Spahmer v. Gullette, 113 P. 3d 158 (2005). Pursuant to the Spahmer decision, the court’s analysis will essentially entail making a best interest standard assessment of which parent the children will be better of living in and allocating parenting time from there. Also, this analysis will entail the court factoring where each parent wishes to live and proceeding as such. The standard for being able to move pre-final orders is easier than once orders are entered, a fact which should be considered before making decisions on how to proceed with your case.
In cases in which parenting time and decision-making orders have already been entered and in which the primary residential parent, or equal time parent, wishes to relocate with the children out of Colorado, the analysis will be driven based on C.R.S. 14-10-129(2)(c). Pursuant to statute, there are various factors tied into the proposed move which the court must look at, all tied into the best interest of the child. This might include reason for the move, new location, support system in each location, educational opportunities for the child in the new location, what visitation will be for the parent left behind, and more. The general belief among child custody attorneys is that relocation requests can be tough in that courts are hesitant to remove one parent from the child’s life by authorizing the move. Each case is different and your facts and circumstances will truly matter. One should keep in mind that when a motion to relocate from Colorado, or in a geographically significant manner, is filed the non-primary parent has the right to seek primary residential custody under a “best interest” standard, as opposed to the general “endangerment" standard required to change physical custody from the primary parent.