By: Jessica A. Saldin
It is not uncommon for people facing the end of a marriage or break-up of a relationship to contemplate moving out of state- either for a fresh start, to be nearer to family, or other reasons. We often have people facing a divorce or custody case asking if they would get in trouble if they leave the state of Colorado with the child(ren). In general, as long as there are no orders in place and they have not filed or been served with a divorce or custody case, there wouldn’t be any law preventing them from leaving Colorado. However, that is not us saying we recommend people go ahead and leave. If people leave the state with the children, and a case is then filed, the court has the authority to order the parent to bring the children right back to Colorado. Additionally, the parent that left with the children is often viewed in a negative light with the court. It can come across that the person left to try to “win” at the divorce or custody case and become the primary parent. However, if there are provable issues of domestic violence and evidence that the parent left with the children for safety reasons, the court is not supposed to make a negative inference from the person’s departure (though they can still order the parent to bring the children back).
The better course of action (actually recommended by the court in a published court decision) is for the parent to remain in Colorado, with the children, and ask the court’s permission to move as part of the case. In initial divorce and custody cases (before final custody orders are entered) a parent wanting to live out of the state of Colorado has special Constitutional protections. As per a Colorado child custody decision, the court actually has to take each party where he or she intends to live and allocate custody accordingly. Therefore, it is best to remain in Colorado until orders are entered by the court, rather than leaving prior to filing or being served and risk the court ordering you to bring the children back and starting off on the wrong foot with the court. However, this does not apply to situations where you have written agreement from the other party to take the children out of state (email, text message, signed agreement, etc.) or where you are moving but the children will stay in the state of Colorado. In those situations the court should not have an issue with you moving prior to orders being entered.
You may be asking, “what if I already have custody orders?” In that situation, generally you cannot move out of state with the children without written agreement from the other party or order of the court. Additionally, in those cases, there is a different standard for the court to follow. Those cases are known as “relocation” cases and are discussed, at length, in some of our prior blog posts. As discussed above, if you are making the request to live out of state with the children before final orders are entered, the court has to accept where both parties intend to live and allocate parenting time accordingly. In other words, in those cases, the court just follows the best interest standard. However, in relocation cases, there are many additional factors the court has to consider and the court can deny your request to relocate with the children. A notable difference between requests to move before final custody orders are entered and after custody orders are entered is that post-final orders, the party wishing to move with the child is required to justify the basis for the move.
Ultimately, if you have a custody case and are thinking, at some point, you would like to live in a state other than Colorado, the best time to make that request is part of your initial divorce or custody case (prior to the entry of final orders). While it is never an easy decision for the court, the chances of being named the primary parent out of state are typically greater than the chances of being allowed to relocate with the children after orders have already been entered.