The United States is a highly mobile country. Former spouses will often move to states to get new jobs. They may also move to put distance between themselves and their former partner. In past years spouses who were not awarded the custody of children would take them across the border to another state in the hope of a more sympathetic reception in the courts. In many cases they were successful.
The Uniform Law Commissioners met to iron out these issues in 1969. The result was the Uniform Child Custody Jurisdiction Act (UCCJA). By 1981 every state had adopted it. The UCCJA was designed to discourage interstate kidnapping of children by non-custodial parents. Before the UCCJA, it was a common practice for non-custodial parents to take children across state lines, where the courts might award them custody. The situation in which more than one state had the power to adjudicate a custody dispute, made for uncertainly and acted as an incentive to the non-custodial parent to take a child out of state.
The UCCJA changed the rules in establishing jurisdiction over a child custody case in one state and ensuring that order was protected from modification in another state, as long as the original state retained jurisdiction over the case.
The UCCJA was later revised as the Uniform Child Custody Jurisdiction and Enforcement Act. Colorado has adopted the UCCJEA, §14-13-101, et seq. C.R.S
Law to Prevent Kidnapping
Congress enacted the Parental Kidnapping Prevention Act (PKPA) in 1981. The PKPA is federal law. It provides that once a state has exercised jurisdiction, that jurisdiction is the continuing and exclusive until every party to the dispute has left that state. However, the PKPA, as its name suggests, is preventative. If a party has already wrongfully removed a child from Colorado, the PKPA provides little help. If the child has been removed to another country, an action can be filed under the Hague Convention to have the child returned. Remedies under the Hague Convention are powerful and relatively swift, but only apply to countries which have signed the treaty.
Which Court Has Jurisdiction?
A state that is not the “home state” of the child will generally defer to the laws of the “home state,” if there is one, in a divorce or child custody dispute. A state that assumes jurisdiction over a child custody dispute, will generally retain it as long as that state maintains a significant connection with the parties involved or until the child and both parties have moved away from the original state. Once a child is in a new home state, jurisdiction may eventually transfer to that state, even if one of the parents continues to live in the former state.
Removal of Children During Divorce or Separation Proceedings
When divorce or legal separation matters are proceeding in Colorado, the law prevents one party from taking away the children from the state, even temporarily, without express permission from the other spouse or from the Colorado family law judge
Disputes between former spouses can also arise when the parent with legal custody of the children wants to move to another state or even to a distant part of Colorado.
The relevant question is whether the move is permissible if the other parent objects. These cases are known as child custody or visitation “removal,” “relocation” or “move-away” cases.
Information the Relocating Parent Needs to Supply to The Other Parent
Under Colorado law, the parent proposing to relocate must do the following:
- Give the other parent notice of his or her intention to relocate;
- Provide the location of the child’s proposed new home;
- Detail the reasons for the requested relocation and move; and
- Provide a draft revised new parenting time plan and schedule.
If the other parent of your child proposes to move to another state, or even an inconvenient distance away in the same state, you have the right to challenge it.
Child relocation hearings are given priority by the Colorado family law courts. The judge must decide these cases on whether the proposed relocation is in the children’s best interests.
Unless there is already a custody order in place, the court approaches the issue with no presumption in favor of either parent. This means the child might be ordered to stay with the local parent if the court deemed it to be in the child’s best interest. However, the court cannot order either party to live in a particular location but must assume that the relocating party will, in fact, relocate and determine the child’s best interests based on that legal assumption. As a result, the court cannot even consider whether it is in the child’s best interests for the parents to remain in close proximity to each other, although, that is usually the case.
Important Criteria in Removal Proceedings
- The reasons given why the parent with custody wants to relocate with the child.
- The reasons why the non-custodial parent objects to the proposed move;
- The nature and quality of the parent’s relationship with the child since earlier court orders, including the time the non-custodial parent has spent with the child or children;
- The educational opportunities for the child in their present home versus those available in a new community;
- The presence of extended family in the existing community compared with those in the proposed new community;
- The benefits of the child remaining living with the parent with whom the child presently resides a majority of the time;
- The likely impact of the move on the child;
- The potential parenting time and scope for visitation that can be given to the other parent if the move or relocation is granted;
- Any other pertinent factors relevant in considering the best interests of the child.
Moves Within Colorado
A move within the state of Colorado which substantially changes the geographical ties between the child and the non-custodial parent requires consent from the other party or permission from the court.
Colorado is almost 400 miles across. But even a move across a city such as Denver can disrupt visitation arrangements if, for instance, a change in circumstances means weekday overnights with the non-custodial parent are impractical, the move would fall under the permission requirements of C.R.S. 14-10-129.
Colorado parenting law is applicable to any intended relocation that “substantially changes geographic ties.”
A Foreign Country is a U.S. State
Under the UCCJEA, a foreign country will be treated in the same way as another U.S. state in relocation cases.
A child custody determination made by a foreign company will be generally recognized and enforced, unless:
The law of the foreign country violates the “fundamental principles of human rights.”