How to Win a Child Relocation Case in Colorado

Being able to freely move around is a fundamental right in the U.S. When it comes to family law, the court does not have the authority to require a parent to live in a particular place. However, Colorado family courts take child relocation seriously, and do have the authority to decide whether one parent can change their child’s geographical ties to the other. If you are considering moving out of state with your child, you should talk to a family law attorney.

In this Guide:

• An Important Step in a Colorado Child Relocation Case
• How to Avoid Costly Child Relocations Litigation
• What to Expect if Your Child Relocation Case Goes to Court
• How Relocating with Your Child Affects Custody
• How to Make Up Lost Parenting Time

An Important Step in a Colorado Child Relocation Case 

When a parent considers moving away with their child, the most important step is to communicate with the other parent.

Colorado law requires that the party wishing to move give the other parent written notice as soon as practicable. The notice must include:

• his or her intent to relocate
• where he or she plans to move
• why the parent wants to relocate
• a proposed revised parenting time plan— Colorado Revised Statutes 14-10-129(1)(a)(II) 

The other parent may object to the relocation. However, that does not necessarily bar the parent wishing to move from doing so. Typically, a court is more likely to approve of the relocation if the child is younger and with their primary caregiver. A court is also more flexible if the move is requested at the start of a divorce/custody proceeding.

How to Avoid Costly Child Relocations Litigation 

Relocation cases are some of the most contentious matters in family law. They often end up in a costly court battle.

To reduce the likelihood of expensive litigation, parents can enlist the help of an attorney to mediate the issue, draft a new parenting plan, and file the appropriate modification paperwork with the court.

It is always less expensive, and more efficient, to negotiate a modified parenting plan out of court. The court that issued the original parenting plan, however, must still approve the modified agreement.

What to Expect if Your Child Relocation Case Goes to Court 

If you and your ex are unable to reach an agreement, whoever is seeking to move must file a motion with the court to request relocation with the child. The motion should include details that could support a finding that the move is in the child’s best interests, such as better schools, the support of extended family, etc.

The moving parent will also have to draft a suggested new parenting plan and attach a proposed order.

In requesting relocation, the moving party must also address the issue of child support. If relocation warrants a modification of child support, both issues may be raised and resolved in one proceeding.

What the Court Considers in a Child Relocation Request 

According to state law in allocating parenting time, the court must consider the physical proximity of the parties to each other as this relates to the practical considerations of parenting time. — Colo. Rev. Stat. 14-10-124 (1.5) 

The statute does not mandate where a parent can live. In fact, nothing in the statute gives the court authority to order a parent to remain in Colorado with their child.

The Best Interest of the Child 

In deciding whether a child should be permitted to relocate with a parent during pre-decree custody proceedings, Colorado courts must determine whether the relocation is in the best interest of the child. — Colo. Rev. Stat. 14-10-124

To determine the best interest of the child in a post-decree relocation, the court considers a number of factors, including:

• why the parent wants to relocate
• why the opposing parent objects to the relocation
• the availability of daycare in the new location
• the quality of schools in the new location
• the history of each parent’s relationship to the child since any previous parenting time order or agreement
• the anticipated impact of the move on the child
• whether the court can fashion a workable parenting time schedule if the suggested change is allowed

—  C.R.S 14-10-129 (2) ( c )

The court will also consider familial connections. For instance, what kind of family support network will the child be taken away from if the parent is allowed to move, and will the child have family in the new location?

How Relocating with Your Child Affects Custody 

Custody courts always look at how close a child’s parents live to each other. This helps determine whether the parents can share decision-making authority. It also influences how the parents will share parenting time.

Naturally, relocating with your child to a new area will affect the custody situation. How much custody will change depends on whether the move was made before or after the court’s initial decree allocating parental responsibilities.

Relocating Before the Court’s Custody Decree 

If you must relocate with your child, it’s better to do so before the initial custody order if possible. This allows the court to consider your chosen location before it allocates parental responsibilities and forms a parenting time schedule.

The court’s final decree cannot order either parent to remain in Colorado, however, it is allowed to consider the geographic location of each parent’s residence before determining custody and parenting time.

Let’s look at the Colorado Supreme Court case that clarified this.

Spahmer v. Gullete 

Background 

Jennifer Spahmer and Todd Gullette never married. They were briefly engaged and had a daughter in September of 2001. After their relationship ended, Spahmer put their daughter in her car and drove to Arizona to spend the Christmas holiday with her family. When she notified Gullette of her plans, she was already on the road.

Gullette was more than a little concerned. He saw Spahmer’s holiday visit as a pretext to relocate their daughter to Arizona. He immediately filed an action for custody rights and a motion for a restraining order requiring Spahmer to return their daughter to Colorado.

Their allocation of parental rights proceedings got underway after Spahmer returned to Colorado after Christmas.

Trial and Appellate Courts Prohibit Relocation 

After hearing testimony from the mother (Spahmer), the father (Gullette), and a court-appointed special advocate, the court awarded both parents decision-making authority. However, it also ordered Spahmer to remain in Colorado, advising that she “seek employment and housing in the Boulder-Denver Metropolitan Area.”

An appellate court upheld the trial judge’s ruling, interpreting the language in C.R.S. 14-10-124 (1.5) to mean that parents should remain in the same geographical area.

High Court Reversal 

The state Supreme Court reversed the lower courts. It also clarified that while a court may consider the geographic location of each parent’s home during custody cases, the statute provides no authority to order one parent to remain in Colorado with their child:

“While the trial court has the authority to consider where the parents live with relation to each other for the purpose of allocating parenting time, this authority, by its plain language, does not extend so far as to allow a court to order a parent to live in a particular or specific location.” — Spahmer v. Gullette (Colo. 2005) 

Relocating After the Court’s Custody Decree 

So, what happens if you decide to relocate with your child after the court has allocated parental responsibilities and put forth a parenting plan?

Even after a court has issued a divorce decree, it still cannot order a parent to remain in Colorado. However, it can order that the children be kept in the state, even if that means switching primary custody from the relocating parent to the one remaining in Colorado.

As always, the court will make its determination based on what it sees is in the best interests of the child or children.

What if No Divorce or Custody Case is Pending?

It is not illegal to move with your child if no divorce or custody proceeding is underway. For example, if you have a child with your ex-boyfriend and want to move out of state to be closer to family, you can.

However, Colorado still has legal jurisdiction over your child(ren) for six months after you take them out of state. This means the children’s other parent can file a custody case during that time.

If You Take the Children Without Notification 

If you left with the kids without permission or even notifying the other parent, they can file an emergency motion claiming you have “abducted” the child. If the motion succeeds, you could face fines, legal fees, and/or jail time, in addition to being ordered to return the child to Colorado. (C.R.S. 14-13.5-101.)

Avoid Confusion and Penalties During a Divorce Action

If you’re getting divorced, the court may issue temporary orders that outline how to handle issues like custody. These orders will include a mandatory injunction to keep you and your spouse in Colorado while the case is pending. Therefore, it’s important to give your spouse, and the court, proper notice (see above) before packing up and leaving.

If you leave without informing both the court and other party, you will be violating a court order. Penalties for this could include fines, paying the opposing party’s legal fees, and even jail time.

How to Make Up Lost Parenting Time

Child relocation cases are incredibly difficult matters for all parties involved, including the children. Why? It is inevitable that one parent will likely lose a significant amount of parenting time with their child due to the distance.

One way this precious time with your child can be made up is to incorporate additional days into the revised parenting plan. For instance, you may be able to take more time with your child during the summer or the longer Christmas break. Other school breaks, such as fall break, Thanksgiving, and spring break could also be considered for additional time.

Contact Our Attorneys for Child Relocations

Child relocations tend to be contentious and complicated matters. We strongly recommend you consider talking to a family law attorney about your particular circumstances. Call 303-688-0944 for your free case assessment.