Change is inevitable. Change is constant. – Benjamin Disraeli
How far can you move if you have joint custody? How does a judge decide who gets custody? What happens when a parent wants to move somewhere far away after a divorce? We frequently hear these questions from our clients in Aspen, Edwards, Carbondale and Glenwood Springs.
Parental relocation cases are highly emotional and hotly contested. Relocation cases frequently go to trial. The stakes are high. Arguably there are “winners” and “losers” in child custody relocation cases. In Colorado, there is a difference between a relocation request by a parent going through a divorce compared to years afterwards. The below lays out the framework for how a court handles parental relocation requests after a divorce has been finalized and a decree has entered.
Colorado law instructs trial courts to determine the allocation of parental responsibilities, including parenting time, in accordance with the best interests of the child, giving “paramount consideration to the physical, mental, and emotional conditions and needs of the child.” The allocation of parenting time is a matter within the sound discretion of the trial court, taking into consideration the child’s best interests and the policy of maintaining the child’s relationship with both parents. In determining the best interests of the child, the court must consider all relevant statutory factors.
There are additional considerations for the court when analyzing a post-decree parental relocation. First, a reduction in parenting time resulting from the other parent’s relocation with the child is not to be construed as a restriction requiring the court to apply the “endangerment standard” set forth in subsection (1)(b). In re DeZalia, 151 P.3d 647 (Colo. App. 2006). Second, a court must accept the location in which each party intends to live. In re Marriage of Morgan, 2018 COA 116M, ¶15. A court may not effectively coerce a parent into abandoning his or her plans to relocate by allocating all parenting time in Colorado. Third, in addition to the statutory factors under C.R.S. 14-10-124, a court must also consider the nine factors listed under C.R.S. 14-10-129. In re Marriage of Ciesluk, 113 P.3d 135, 140 (Colo. 2005). The court’s analysis in Ciesluk is instructive for post-decree relocation cases.
In Ciesluk, the court stated, “[W]e hold that both parents’ constitutional interests, as well as the best interests of the child, will be best protected if each parent shares equally in the burden of demonstrating how the child’s best interests will be impacted by the proposed relocation.” The court in Ciesluk considered and rejected alternative approaches to post-decree relocations. For example, the Colorado Supreme Court reviewed Minnesota’s approach that elevated the best interests of the child to a “compelling state interest.” In rejecting this approach, the court in Ciesluk noted that Minnesota effectively subjugated the relocating parent’s right to travel to the child’s best interest and would potentially make divorced parents captives in Colorado. The Colorado Supreme Court cited to U.S. Census Bureau data that found about 1 in 6 Americans move each year, and the “average American” makes 11.7 moves in a lifetime. Ultimately, the court in Ciesluk found that each parent shares equally the burden of demonstrating the child’s best interests will be served because it is unrealistic to assume that divorced parents will permanently remain in the same location.
First, the statutory factors of C.R.S. 14-10-124.
In addition, the Court must also consider the factors under C.R.S. 14-10-129(2). Those are listed below:
To read more about parental relocation cases, click here. Kalamaya | Goscha is a Colorado law firm founded by Ryan Kalamaya and Amy Goscha. The boutique mountain law practice specializes in divorce, child custody, and family law. Kalamaya | Goscha has law offices in Aspen, Edwards, and Glenwood Springs. To speak to an attorney call (970) 315-2365.