A parent wanting to relocate with minor children frequently comes up in divorces or general child custody disputes in places like Aspen or Vail because of the high cost of living. Parents going through a divorce realize that living alone is more expensive and challenging in terms of a work-life balance. Often times a parent will determine that moving closer to family or a less expensive area is necessary even though it will result in the other parent having significantly less time with the children.

Two Different Standards for Colorado Parental Relocation

In Colorado, relocation cases are separated into two distinct categories: (1) initial allocation of parental responsibilities and (2) post-decree modifications. For example, the analysis for a mother going through a divorce in Vail who wants to relocate to New York City is different than the same mother who wants to leave Vail five years later.

The former situation — where a parent is going through an initial allocation of parental responsibilities — is guided by Spahmer v. Gullette and C.R.S. 14-10-124. The latter — a post-decree relocation — is controlled by In re Marriage of Ciesluk and C.R.S. 14-10-129.

Relocation in the Original Divorce: “A Spahmer Case”

The short answer is that it is easier for a parent wanting to relocate before a court issues a final order (decree) allocating parental responsibilities versus after.

The uncertainty and chaos in a divorce is one of the reasons why the Colorado Supreme Court held that a trial court must accept the location where each parent intends to live during the initial determination to allocate parental responsibilities in Spahmer v. Gullette. The Colorado Supreme Court reasoned that parents are on equal ground when initially determining parental responsibilities such as a divorce.

In contrast, after a divorce (or an order is issued for unmarried parents) is finalized, each party has vested parenting rights. If one parent wants to move, it will undoubtedly reduce the other parent’s legally-recognized rights. Moreover, there is a degree of stability achieved for the child after a decree setting a parenting schedule has been issued. We’ll examine post-decree relocation cases in detail later, but it helps to understand the basis for Spahmer.

Spahmer requires everyone involved – the judge, attorneys, parties and any expert parent evaluators – to view the situation through an overly simplistic lens. The parent intending to move cannot leave the state with the child during the pendency of the case unless they have permission from the other parent or there is an extraordinary circumstance that would justify a court order. For a parent intending to permanently move, the risk of allowing them to travel out of state with the child is that they will never come back. Therefore, Spahmer results in a legal fiction where both parents are physically in Colorado, but one parent is looked at as if they’ve already moved.

So what does the Court consider when dealing with a Spahmer case? The “best interests of the child.” The statute, C.R.S. 14-10-124, for the best interests of a child explicitly contemplates the following factors:

1. The wishes of the child’s parents as to parenting time;
2. The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
3. 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;
4. The child’s adjustment to his or her home, school, and community;
5. 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;
6. 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;
7. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
8. The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
9. The ability of each party to place the needs of the child ahead of his or her own needs.

Arguably the above list opens the door to a discussion about the difference in crime rates, schools, familial support, jobs, and cost of living between the new and existing locations. For example, a parent who wants to stay in Aspen would inevitably cite the quality of schools. In contrast, a soon-to-be single-mother in Vail will justify her planned move because she’ll have the support of her family in a less expensive place like Denver or elsewhere.

As detailed below, those sorts of arguments may not come in under the simplistic analysis of Spahmer because they’re explicitly reserved for post-decree relocation disputes under C.R.S. 14-10-129.

Post-Decree Parental Relocations: “A Ciesluk Case”

The case on point for post-decree relocation cases is In re Marriage Ciesluk. Spahmer and Ciesluk were decided by the Colorado Supreme Court on the same day in 2005. To fully understand the differences between how pre- and post-decree cases are decided, Spahmer and Ciesluk should be read together.

In Ciesluk, the parents finalized their divorce shortly before mother filed a motion to relocate to Arizona with the parties’ little boy. The trial court denied mother’s motion to relocate on the basis that her move would harm the boy’s relationship with his father. The trial court relied heavily on an article by Sanford Braver. In doing so, the court effectively created a presumption in favor of the father.

The Colorado Supreme Court upheld the trial court’s application of the relocation statute, C.R.S. 14-10-129(2)(c), but found that the trial court unconstitutionally infringed on the mother’s right to travel by creating a presumption in favor of the father. The Supreme Court held that the relocation statute puts both parents on a level playing field by not assigning a burden to either parent.

Under Ciesluk, a trial court must consider the factors set forth in the relocation statute in addition to the statute on the best interests of the child under C.R.S. 14-10-124. The factors for C.R.S. 14-10-129(2)(c) are listed below.

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

These factors undoubtedly result in a much more robust analytical framework when compared to a pre-decree (Spahmer) case. And many divorce attorneys believe that there is a bright line between pre- and post-decree cases. That’s understandable if Spahmer and Ciesluk are merely skimmed.