Can a mother move a child away from the father without his permission?

Parental Relocation

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 on Post-Decree Relocations

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 re Marriage of Ciesluk

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.

Factors on the “Best Interests of the Child”

First, the statutory factors of C.R.S. 14-10-124.

  • The wishes of the child’s parents as to parenting time;
  • The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
  • The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
  • The child’s adjustment to his or her home, school, and community;
  • The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
  • The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party’s protective actions shall not be considered with respect to this factor;
  • Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
  • The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
  • The ability of each party to place the needs of the child ahead of his or her own needs.

Special Factors on Post-Decree Relocations

In addition, the Court must also consider the factors under C.R.S. 14-10-129(2). Those are listed below:

  • The reasons why the party wishes to relocate with the children;
  • The reasons why the party is objecting to the proposed relocation;
  • The history and quality of each party’s relationship with the children since any previous parenting time order;
  • The educational opportunities for the children at the existing location and the proposed new location;
  • The presence or absence of extended family at the existing location and the proposed new location;
  • Any advantages of the children remaining with the primary caregiver;
  • The anticipated impact of the move on the children;
  • Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
  • Any other relevant factors bearing on the best interests of the child.

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.

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