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Child Custody: Leaving the State With Your Children Prior to a Case Being Filed

By: Stephen J. Plog

If I had a nickel for every time someone asked me whether they could leave Colorado with their kids and if they would get in trouble for doing so I would be a rich man. I suppose I have earned a few nickels answering these types of questions over the years. Having handled more Denver area custody cases than I can count, I have learned that no two cases are exactly alike. Though facts may differ, the applicable laws stay relatively constant.

When asked by a prospective client whether they can just leave Colorado, with the kids, without legal ramifications, I am compelled to ask an array of questions tending towards an appropriate answer:

1. Has a court case been filed?
2. If the case has been filed by the other party have you been served?

I ask these two initial questions because Colorado Statute, specifically C.R.S. 14-10-107 and C.R.S. 14-10-123 prohibit removing children from Colorado while a case is pending. The filing party is immediately under these statutory injunctions. The other party is subject to these injunctions upon being served. Violating these statutory prohibitions and leaving the state can be disastrous to any case and may lead to the issuance of an emergency order requiring return of the children (and likely placing them in the care of the other party). If the client answers no to these two question I am then compelled to dig deeper to further analyze the situation.

Upon determining that no case has been filed, it is still important to make sure the client understands that Colorado will still maintain jurisdiction over the children for 182 days after they leave. Thus, even if a party and children have left Colorado, custody will still be litigated here if a case is file during that time frame. If one party intends on ultimately residing elsewhere with the children, the case will be determined under a case called Spahmer, which essentially requires a court to accept where each party intends to live and which party is better equipped to have primary residential custody of the children. That is another analysis for another article.

Even if no case has been filed, it is important for the party leaving with the children to understand that, depending on the circumstances surrounding the move, a court may very well entertain an emergency motion to bring the children back, or a petition under the Parental Abduction Prevention Act. As such, just leaving without a valid basis is not a good idea. To ascertain a whether a valid basis, likely to thwart an emergency request to have the children returned while a case is pending, exists, I will ask additional questions:

3. Are you planning on leaving due to safety concerns, such as domestic violence, child abuse, or significant substance abuse?
4. Are there financial concerns, such as an ability to adequately, financially care for the kids in Colorado?
5. Is the other party able to assist with child care and child raising?
6. Are there employment considerations necessitating the move and are you the primary caregiver for the children?
The answers to questions 3 through 6 may provide a justifiable basis to move which a court may recognize. If a court believes a parent just left Colorado, with the children, without a rational basis, it is likely that the court will determine the parent’s motives are designed to deprive the other party of the children or to gain the upper hand in the battle for residential custody.

If there are provable safety concerns most courts are going to understand why a party needed to leave, or flee, Colorado to a safer environment. Likewise, if a party is in a situation in which they are unable to financially care for the children and the other parent is unwilling or unable to help, a court many find that the move to another state was in the kids’ best interest and done out of financial necessity. Financial necessity can also tie into whether the other parent is there and available to help care for the kids, assist with child care when both parties need to work, etc. If a parent is absent and unhelpful a court is less likely to order the children returned, particularly when there is a support network in the other state. Likewise, if the parenting leaving Colorado is the primary caregiver for the children and needs to leave for new, better employment, many judges will view a move as valid. Again, each Denver custody case is different.

As indicated above, justification is necessary. Otherwise, the supposition to be drawn is that the the parent leaving the state is doing so to keep the children from the parent remaining. Demonstrating an ability to foster a loving relationship between the children and the other parent is a critical factor courts look at in determining residential custody and the best interest of the children. See C.R.S. 14-10-124. Beyond having a valid basis for leaving, parties must be ready to litigate that basis and provide credible evidence at hearing.

If a party intends to leave Colorado with the children prior to the filing of a case it’s important to let the other party know you are leaving, or have left, and where you will be going. Deception as to where your children will be living is not well received by most courts and can lead to a finding of abduction (not to be confused with criminal abduction). However, in instances of abuse or violence, courts will generally understand the need for secrecy as to the whereabouts of the children.

It should be noted that even if a party leaves Colorado prior to the filing of a case for all the right reasons, the other party is not prevented from taking action, or taking a shot, at trying to have the children returned on an emergency basis. An experienced Colorado family law attorney will know how to deal with such a motion, which may or may not be served with the underlying petition. It is important to remember that deadlines for responding must be met and that emergency motions may necessitate a response in a shorter time frame than might otherwise be authorized under statute.

Finally, unless a party has been served or there are court orders in place prior to leaving Colorado with the children there is nothing criminal about moving out of state with your kids without permission of the other party. Both parents have equal rights to the kids until a court or statute says otherwise, including the right to leave the state with them.

If you are planning on leaving Colorado with your children it’s imperative that you speak with an experienced divorce or custody attorney to understand your rights and options. Wrong moves can have a lasting effect on the overall case and could completely change what might otherwise be a completely winnable custody battle.

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.