Moving With Children: Colorado Custody — Visitation Relocation Law
In this, our “Spotlight” feature, we discuss in detail a single issue of Colorado divorce law or the family mediation process. We periodically change our Spotlight’s focus, so return soon to review other featured Colorado legal, procedural or parenting topics!
Parents Moving With Children: Changes To Colorado’s Relocation Procedure And Standard
Divorced or unmarried Colorado parents sometimes find themselves considering moving out-of-state or relocating to a community substantially more distant (from the other parent) than contemplated by their original parenting plan.
The question often arises: Is such a move permissible in the face of the objection of the other parent? Legally, this is often referred to as a child custody or visitation “relocation” or “removal” issue and dispute. Colloquially, these are often called “move-away” cases.
Recent Colorado divorce and custody statutes (laws passed by the Colorado legislature) and Colorado case law (decisions by judges hearing appeals of Colorado custody-visitation trials) appear to change the legal landscape. Parents considering moving or relocating with their children, or considering their spouse or co-parent’s request to move or relocate, will find a new approach and test applied to their case if they are unable to reach an agreement and proceed to court.
Colorado Laws’ Procedure And Additional Factors For Custody Relocation Cases
In September 2001, the Colorado statutes established a new procedure and standard for review of cases in which the parent with whom the child resides a majority of the time seeks to relocate or move to a residence substantially changing the geographic ties between the child and the other parent.
The Colorado Custody And Visitation Relocation Procedure
The new Colorado child custody and visitation relocation law requires a parent seeking to relocate with the parties’ child, to provide written notice to the other parent, of:
The requesting parent’s intent to relocate
The location of the proposed new home
The reasons for the requested relocation and move
A proposed and revised new parenting time schedule and plan
The Colorado Custody And Visitation Relocation Standard
The Colorado child custody and visitation relocation law further requires the court considering such a request, to determine whether relocation “is in the best interests of the child,” considering all relevant circumstances, including ordinary custody-visitation-parenting time factors, and additionally nine special concerns:
The reasons why the parent wishes to relocate with the child
The reasons why the other parent objects to the proposed move
The history and quality of each parent’s relationship with the child since earlier court orders
The educational opportunities for the child in the present home community and/or in the proposed new community
Whether there is extended family in the present home community and/or in the proposed new community
The benefits of the child remaining with the parent with whom the child presently resides a majority of the time
The anticipated impact of the move on the child
Whether meaningful parenting time-visitation can be afforded by the other parent if the move or relocation is granted
Any other factors relevant in considering the best interests of the child
The law contemplates that moving within Colorado may also materially disrupt present parenting plans and timesharing arrangements. The new Colorado parenting law applies to any intended relocation that “substantially changes geographic ties.”
Colorado Courts: New Custody-Visitation Law Changes Legal Framework — Relocation Now Best Interests Standard
The Colorado Court of Appeals (Colorado’s intermediate appellate court) has invoked this new Colorado family law statute and framework in two recent Colorado child custody-visitation relocation cases, emphasizing that the “best interests of the child” standard now controls Colorado courts’ rulings in relocation/move-away cases.
In a May 2004 case, the Colorado Court of Appeals agreed with a Jefferson County trial court’s ruling in support of a parent’s (in this case, the father’s) objection to a proposed move. In the particular circumstances of this family, the Colorado divorce court disallowed a mother’s request to relocate with their son to Arizona.
In an April 2005 case, the Colorado Court of Appeals approved an Adams County, Colorado, divorce judge’s decision that a mother’s proposed move to Missouri with the parties’ children was also contrary to the children’s best interests. To prevent the move-away, the Adams County trial court changed the parties’ decision-making authority (formerly called “custody”) to a shared approach and designated father as the primary residential parent.
What factors influenced this particular decision? The Colorado trial judge found that the children had thrived in the same school since preschool, were highly involved in community activities and school sports, enjoyed meaningful relationships with their half-brother in father’s home and with their grandparents residing in the neighborhood, and that the father was a vital part of their lives. Specifically, the Colorado trial judge and reviewing appellate court noted that − in this case − the mother’s decision to move seemed “predicated on her needs and desires” and failed to grasp “how the children would be affected by separation from their father, their extended family, their half-brother and the community.”
Importantly, the Court of Appeals ruled that the new Colorado statute had the effect of abolishing the earlier approach of Colorado divorce-child custody-visitation relocation law cases that created a presumption in favor of the parent with whom the child then resided a majority of the time. (Under the earlier approach of Colorado case law, the parent seeking to relocate was required to show a sensible reason for the move, but then the burden of proof shifted to the parent opposing the move.)
These recent Colorado Court of Appeals cases − if not overruled by the Colorado Supreme Court − establish that Colorado courts must now decide whether to permit a parent to relocate with a child (over the other parent’s objection) purely on whether such a move or relocation is, on balance and considering all the factors of Colorado law, in the best interests of the child.
Colorado Supreme Court June 2005 Child Custody Relocation Rulings
In June 2005, Colorado’s highest and final appellate court, the Colorado Supreme Court, decided two important child custody cases involving the issue of a parent’s moving or relocation.
Relocation At The Initial Determination On Colorado Child Custody
In the first of these (the Spahmer case), the mother wished to move from Colorado to Arizona with her daughter prior to an initial order establishing parenting rights (an “initial custody case”). The Boulder County trial judge had ordered the mother to seek employment and housing in the Denver-Boulder, Colorado, metropolitan area while she completed her education at Colorado State University in Ft. Collins.
The Colorado Supreme Court disapproved the trial court’s approach and declared that Colorado trial courts have no authority to order a parent to continue living in Colorado. Instead, a court must accept parents’ plans regarding where they intend to live and allocate parental responsibilities (how the parents will share parenting time, and how they will make major upbringing decisions) in the child’s best interests — given those plans.
Colorado’s highest court noted that in an initial custody case, parents stand “on equal ground” regarding parental responsibilities. The goal of divorce proceedings is to evaluate the best interests of the child and “create a stable situation between the new family units arising out of a divorce.” Therefore, an analysis of these separate family circumstances is appropriate, rather than the court dictating what these circumstances should be (i.e., where parents will reside).
Relocation Following An Initial Determination Of Child Custody
The second of these cases (the Ciesluk case) involved the issue of “removal” or relocation by a parent after an initial determination of parenting and custody rights (a post-decree case). The Colorado Supreme Court agreed with the Colorado Court of Appeals (and finally settled the matter): the new child custody relocation statute eliminates the law’s earlier presumption in favor of the majority time parent seeking to relocate. Instead, both parents equally share the burden of proving what parenting time plan and child custody arrangements will serve the best interests of the child following a parent’s relocation.
The Colorado Supreme Court acknowledged two competing concerns:
The constitutional right of all citizens to travel — here, an interest of the relocating parent
The constitutional right of personal choice in matters of family life (and thus of parents to maintain close association with, and to meaningfully participate in the upbringing of their children) — here, an interest of the parent remaining in Colorado.
In deciding these relocation cases and determining the best interests of the child, the Colorado trial judge must weigh both these rights and concerns.
If the majority time parent is no longer favored in such cases, neither is he or she disadvantaged. The Colorado Supreme Court found that the Jefferson County trial court erred in its analysis by requiring the primary caregiver (in this case the mother) to show the move would provide advantageous to the child. Colorado’s highest court ruled that requiring the mother to show this “enhancement” of her son’s quality of life with a move (thus infringing upon her right to travel) was inappropriate because it tilted the analysis and placed a greater weight on her as the parent requesting the move.
So, how is such a decision to be made by a judge, should parents be unable to come to their own agreement?
Because both parties stand on equal footing and neither has a special burden of proof, the trial court must consider the right to travel and the right of choice in family life along with the list of 20 factors specifically set forth by Colorado’s statutory law. 11 of these are the same factors that influence the allocation of parenting rights in an initial custody case. Nine additional special factors must be weighed in after-divorce or post-custody orders relocation cases.
These factors must be weighed in light of all information the parents present at trial, or the court learns from other sources, including child and family investigators (“CFI’s” — formerly called “special advocates”). The majority time parent must present specific, nonspeculative information about the child’s proposed new living circumstances and a concrete plan for modifying parenting time as a result of the move. The minority parent may: (1) wholly contest the move and seek to become the majority time parent; or (2) object to the approach of the revised parenting plan proposed by the majority time parent and provide an alternative.
Basic Principles Of Parent Relocation And Move-Away Cases — Colorado Child Custody-Visitation Law
Where does this leave Colorado child custody relocation or “move-away” law? What factors in Colorado family and divorce law control where children will reside when a parent seeks to move a significant distance?
On balance, these principles seem evident:
Colorado parents stand on an equal playing field as Colorado judges weigh what is in the best interests of children when a parent seeks to move.
In initial child custody decisions, courts may not order a parent to reside in Colorado. In subsequent child custody decisions, the court must balance the child’s best interests along with the interests of one parent’s right to move and of the other parent’s right to maintain a close connection with the child. In either case, there is no special burden of proof on either parent, and courts must determine the best interests of the child given the two locations the parents have determined to establish their homes.
Mediation Of Colorado Custody Relocation And Visitation Issues
Obviously, choices and decisions by parents or judges in this regard have great impact on children’s and their parents’ lives. As a result, Colorado divorce law prioritizes hearings on relocation issues. Nonetheless, Colorado judges recognize that these difficult and far-reaching issues are particularly likely to benefit from the family mediation process. As a result, most Colorado courts require mediation before granting a court trial or hearing on a parent’s request to move with a child.
Moreover, these changes to Colorado laws regarding custody and visitation relocation remind parents how important it is that they continue to work together and determine cooperatively the design and management of their parenting plan.
In mediation, parents can candidly discuss the practical realities and choices confronting them and their child, as they contemplate relocating or the other parents’ desire to relocate. (These may include perceived special opportunities and/or hardships with respect to employment, family, school and other circumstances.) At a time when all choices may present challenges, family mediation offers the best opportunity for both parents to be heard and for constructive problem-solving.
Colorado Legal Terms For Relocation-Custody-Visitation
Colorado’s laws regarding relocation embrace the same progressive language of its approach to what is traditionally called “custody and visitation law.” Primary residence means only the home where a child lives a majority of the time. The terms “custody” and “visitation” have been replaced with the terms “allocation of parenting responsibilities” or “decision-making” (how major upbringing decisions are made by the parents) and “parenting time” or “timesharing” (how time with the child is shared between the parents).
See our website’s section on Why Choose Mediation? For other compelling reasons to consider mediation of your Colorado custody-relocation or parenting-visitation dispute.
Also consider our website’s acclaimed Frequently Asked Questions and Myths resources, where we answer other questions and debunk commonly held misunderstandings regarding Colorado divorce laws, court procedures and alternative dispute resolution alternatives, including family mediation.