C’mon Baby, Do the Locomotion: Locating and Relocating with a Child in a Colorado Divorce

A parent may decide where they wish to live upon divorce, but after divorce relocation is more complicated.

A parent may decide where they wish to live upon divorce, but after divorce relocation is more complicated.

Question 1: I am about to get a divorce, and I want to move back home to Texas. Will the court prevent me from moving with my child?
Answer: No. Colorado Law recognizes a parent’s right to decide where they wish to live upon divorce. Unlike some states, whose courts have the power to restrict the residence of a child (and thus a parent) to a particular county or geographic area, Colorado courts have decided that each parent has a constitutional right to live wherever they want.  If you want to move to Texas or any other place when the divorce is final, the court will not stop you.  What the court will do, however, is allocate parenting time between the parents based upon the best interests of the child.  In deciding how much parenting time each parent should have, the court will consider the “physical proximity of the parents to each other as it relates to the practical considerations of parenting time.”  If you decide to move to Texas and the other parent is going to stay in Colorado Springs, the court will have to determine which parent should have the most parenting time (i.e., primary custody), and what kind of visitation the other parent should have.  In this example, the judge could decide that it would be best for your child to reside most of the time with the other parent in Colorado Springs.  The judge would grant you specific parenting time.  On the other hand, if the judge determines that it is in the child’s best interest to reside with you most of the time, then the child will be able to move with you to Texas, and the Colorado Springs parent will have specified parenting time.  In either case, the judge will specify how the child will be transported between parents, and will allocate the costs between you in whatever way the judge believes is fair.

Question 2:  My divorce was final two years ago.  Both my ex-husband and I live in Colorado Springs.  We have two children together, and they live with me most of the time.  My ex-husband has parenting time every-other weekend.  I want to move to Texas to find work and be closer to my family.  Do I have to get permission from the court to move?  Will the court let my child move with me to another state?

Question 3:  My ex-spouse and I both live in Colorado Springs.  She is the primary caregiver, and I have visitation time.  She just informed me she has been transferred to Pennsylvania.  Is there anything I can do to prevent my ex-spouse from moving with the children?

Answers to Questions 2 and 3:  A parent seeking to relocate with a child after a divorce has been granted will need will need to get permission from the court before they move.  The document the parent will file is called a Motion to Relocate a Minor Child.  The former spouse will need to be served with the Motion.  Assuming that the ex-spouse opposes the move, a hearing will be scheduled.  The parents will go to court, and the judge will decide whether the move would be in the child’s best interest.  A Motion to relocate is unusual in that neither party has the burden of proof.  There is neither the presumption that primary caregiver will be allowed to move, nor the presumption that the child must stay.  The judge will consider all of the evidence presented by the parties in making the decision.  There are twenty-one factors for the court to consider:

-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;

-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;

-whether there is credible evidence that one of the parties has been a perpetrator of child abuse or neglect;

-whether one of the parties has been a perpetrator of domestic violence;

-the ability of each party to place the needs of the child ahead of his or her own needs;

-the reasons why the party wishes to relocate with the child;

-the reasons why the opposing party is objecting to the proposed relocation;

-the history and quality of each party’s relationship with the child since any previous parenting time order;

-the educational opportunities for the child at the existing location and at the proposed new location;

-the presence or absence of extended family at the existing location and at the proposed new location;

-any advantages of the child remaining with the primary caregiver;

-the anticipated impact of the move on the child

-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.

As you can see, this inquiry is fact-intensive.  Each case turns upon its own facts.  Therefore, whether you are desiring to move or opposing a move by the other parent, it is important that you put on the best case that you can.  The advocacy of a good lawyer is important.  Contact Kirk Garner to discuss the facts of your case.