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Custody and Relocation With Children (Part 2)

Part 1 of this posting, from June 2014, focused on the basics of relocation with children in a Colorado custody case, including analysis(es) related to situations which might arise either prior to a case being filed, or while a case is pending, as well as pre-final orders requests to move from Colorado with children, covered under a court case called Spahmer. Though various portions of statute and case law deal with the pre-final orders aspects of custody and relocation, there is a completely different legal standard for seeking permission to leave Colorado with the children after final orders have entered in a divorce or custody case.

Once final, or “permanent” orders have entered, there are two scenarios in which relocation with children could become an issue. Prior to getting into an analysis of the law related to properly requesting a change in location, I will briefly address a situation we, as Denver custody attorneys, see from time to time. Though not common, there are instances in which one party to a custody case decides to leave Colorado, or the Denver metropolitan area, with the children and without seeking permission of the court or the other party. If there are parenting time orders in place, the expectation of any court is that they will be followed. If one party decides to just leave Denver, and abscond with the children without permission, the law affords various remedies to the other party. Of course any family law attorney should advise his or her clients that just leaving with the children can have tragic legal consequences.

When on party leave Colorado with the children such that he denies the other party his or her visitation, he or she becomes subject to relief under C.R.S. 14-10-129.5, which relates to enforcement of parenting time orders. Most certainly, he or she will ultimately lose actual physical custody of the children for leaving the state without permission. He or she will likely also be subject to contempt of court proceedings, which can include jail. C.R.S. 14-10-129.5 also contains contempt like provisions. Beyond these avenues for relief, the person wrongly leaving, when caught, can expect to have is or her visitation taken away and will likely have to endure supervised visitation for quite some time until he or she proves they are no longer a flight risk. The arm of the law within the United States is long. Should one elect to flee to another state, once found, it is likely the other side with take steps under the Uniform Child Abduction Prevention Act to get the children returned to Colorado. Finally, violating custody orders and fleeing the state, or area, with the children is technically a felony and can lead to serious criminal consequences, including potentially prison. Colorado family law courts do not like to see their orders regarding visitation violated and the penalties can be harsh. Of course, the “relocation”, per se, discussed in this paragraph is the exception and the wrong way to go about things.

When a party determines that he or she wishes to move from Colorado, with the children, the proper route to go is to seek relief from the court pursuant to C.R.S. 14-10-129, the parenting time modification statute. C.R.S. 14-10-129(2)(c) specifically addresses the issues centered around a parent’s desire to relocate with the children, including procedures, legal standards in terms of what the court is looking for in terms of information to make a determination, etc. Relocation cases are generally also viewed under a case called Ciesluk, 113 P.3d 135 (Colo. 2005), in which the court determined that a court should look at the best interest factors set forth in C.R.S. 14-10-124, as well as those enumerated in (2)(c). Unlike a Spahmer analysis, the reason for the move under Ciesluk matters more significantly.

When the party to a custody case with whom the children reside a majority of the time to a wishes to relocate, post-final orders, the first step will be to file a motion to modify parenting time. Contained in that motion will be request under subsection (2)(c) to relocate. Specifically, and to add clarity, a request to relocate with the children is not just triggered by one party seeking to leave the state. Rather, C.R.S. 14-10-129(2)(c) specifically references a request to change parenting time which would significantly change “the geographical ties between the child and the other party.” A request for relocation could, thus, be required should one party wish to move with the children to Grand Junction, or Colorado Springs, or perhaps even from Castle Rock to Boulder. The triggering of the need for a request really ties into whether, given the requested move, can the current parenting time orders still be effectuated, should the move occur.

When seeking permission from the court to relocate, the requesting party must justify his or her reason for wanting the move and the move must be determined to be in the best interest of the children. The specific factors a court will look at are:

1. Reason for the proposed move.
2. The reason why the opposing party is objecting to the move.
3. The history/quality of each parent’s relationship with the child since orders were last
4. The educational opportunities for the child in the current and proposed new location.
5. The presence or absence of extended family in both locations.
6. Any advantages to the child remaining with the primary residential parent.
7. The anticipated impact of the move on the child.
8. Whether the court can fashion reasonable parenting time for the non-relocating party.
9. Any other relevant factors.

In many instances, a reason or need for moving may be fairly sudden, such as a job transfer. Statute indicates that a request for relocation shall be given “priority” on the court’s docket, meaning that statute recognizes relocation may need to occur rapidly. The term “priority” is vague and can vary from county to county. This will be discussed further in Part 3 of this post, soon forthcoming. More than any other motion or request, a motion to relocate will be highly scrutinizes by the court. The reason stated for the move needs to be a good one. “I met a new woman or man,” or “my new husband or wife has been transferred for work” may not be enough to persuade a court.

In reality, the system as a whole, meaning courts, Child and Family Investigators, and Parental Responsibilities evaluators hate the issue of relocation. I often indicate to clients, or potential clients, that a post-decree request for relocation is the most difficult battle to win in a family law case, absent great facts and circumstances in their favor. In Part 3 of this post, I will discuss the statutory factors, pitfalls related to filing and the legal door opened by such, as well as the realities of how relocation requests are received in the judicial system. One should remember that it is always better to contact an attorney prior to moving forward with a relocation request.

Author Photo

Stephen Plog, co-founder of Plog & Stein, P.C. in 1999, is a dedicated family law attorney with almost two decades of expertise in Denver. Focused exclusively on family law since 2001, he excels in both intricate legal writing and courtroom litigation, having navigated cases in all Denver metropolitan area District Courts. Steve’s comprehensive background, including a Bachelor’s Degree in Psychology and a law degree from Quinnipiac University School of Law, underscores his commitment to providing insightful and personalized representation in family law matters.