Relocation of Children After a Divorce Decree or Initial Child Custody Order in Colorado
Relocating a child after the divorce decree or initial child custody order has already been issued is often more difficult than relocating the child as part of the initial custody order because a higher legal standard applies.
When the initial child custody order issues, the parents are granted certain rights regarding parenting time and decision-making. These rights naturally help establish expectations about the amount of contact each party will have with his or her child and whether the parent will be involved in major decisions concerning the child, such as school choice and health decisions. A post-decree relocation will always upset those expectations and may leave the left-behind parent feeling victimized.
These cases are among the most bitterly-contested of all family law cases in Colorado. It’s important to hire an attorney to take the emotions out of case and give you clear advice about your rights.
Statutory and Case Law
The two legal components that govern post-decree relocation cases are statutory and judge-made (case law). The legislature has provided the courts with several mandatory factors to analyze. In addition, the Colorado Supreme Court has imposed additional considerations.
Colorado Revised Statute, §14-10-129(2) defines the rules for post-decree relocations. The statute strongly favors “the party with whom the child resides a majority of the time” (i.e. the majority parent). A parent who enjoys one-half of all parenting time is generally treated as a majority parent.
A parent seeking to relocate must take the following steps:
- Provide written notice of his or her intent to relocate as soon as practicable
- Include the reason for the relocation and the proposed new location
- Provide the other parent with a proposed new parenting plan that covers the relocation
Relocation cases are given priority on the court’s docket due to the fact relocations are time sensitive by their nature.
The court will consider 11 key areas in its deliberations:
- The best interests of the child (§14-10-124, C.R.S);
- The reason for the relocation;
- The reasons for the objection to the proposed relocation;
- The historical relationship of each party with the child before the relocation request was made;
- Whether any party has been a perpetrator of domestic violence;
- The educational opportunities for the child in each location;
- The level of access the child will receive to extended family at each location;
- The advantage the child will have in remaining with the primary caregiver – a factor of increased importance with younger children;
- The likely impact of the move on the child;
- The likelihood of establishing a reasonable parenting time schedule if the relocation takes place; and
- Any other relevant factors.
What Happens if the Minority Parent Wants to Relocate with the Children?
This issue is not addressed in the statute or in case law.
However, the scenario would qualify as a modification that “substantially changes the parenting time as well as changes the party with whom the child resides a minority of the time.” Such requests will generally be denied absent a showing that the current situation endangers the child. Contact an experienced child relocation attorney if this situation applies to you.
The minority parent may have a better chance of success if he or she first requests a modification to equal parenting time, thus benefitting from the more favorable relocation standard.. However, the court may not view favorably the subsequent motion to relocate if it appears that the party intended to relocate all along. In addition, a two year waiting period may apply before the motion to relocate can be filed.
The 2005 case, Re the Marriage of Ciesluk, set an important precedent for relocation cases.
The Supreme Court found the General Assembly set out to eliminate a previous presumption in favor of the relocating majority-time parent.
It highlighted the many conflicting interests in these cases. The court recognized the federally protected right to travel but said it was balanced against the right to parent, which is also protected in the U.S. Constitution.
The child also has rights. Ultimately, the Supreme Court determined relocation cases involve balancing the right to travel with the right to parent of the parent who will not be moving as well as the child’s best interest.
The majority parent has the burden of showing to the court why the relocation is in the best interests of the child. Relocation cases are generally very complex and involve high stakes, for the parents and for the child. For these reasons, a party seeking to relocate a child is well advised to hire an experience child relocation attorney.
Hiring a Colorado Family Law Attorney for Post Decree Relocation Cases
Post decree relocation cases are often emotive and may be bitterly fought. An experienced Denver family law relocation attorney can help you approach your case in a level headed way and advise you on your chances of success. Call the Thode Law Firm at 303.330.0425