Colorado Relocation of Minor Children – Modification of Parenting Time – by Marc Patoile
Colorado Child Custody and Colorado Relocation Attorney
Colorado Child Relocation
There has been a fundamental shift in philosophy of the Colorado courts in recent years regarding the ease of a primary residential custodial parent relocating with the minor children outside of the State of Colorado, both as a request made as part of the divorce process, or even after a Decree of Dissolution of Marriage has entered.
While a Colorado divorce or legal separation is pending, Colorado law prevents one party from removing the children from Colorado, even temporarily, without either permission from the other party or from the Colorado family law judge.
As of the time of writing, when the majority residential parent, or a co-equal parent with 50/50 parenting time seeks to relocate with the children to a location which substantially changes the geographical ties between the children and the other parent, under C.R.S. 14-10-129(1)(a)(II) the parent seeking relocation must, as soon as practicable, provide the other with:
1. Written notice of the intent to relocate,
2. The location where the party intends to reside,
3. The reason for the relocation, and
4. A proposed revised parenting plan.
As of the time of writing, there is a long list of factors in C.R.S. 14-10-129(2)(c) the court is required to consider at a removal hearing, including:
1. The reasons why the party wishes to relocate with the child;
2. The reasons why the opposing party is objecting to the proposed relocation;
3. The history and quality of each party’s relationship with the child since 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 of the child 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; and
9. Any other relevant factors bearing on the best interests of the child.
A recent Colorado Supreme Court decision, In re: the Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005), held that no presumptions in favor of either parent apply in a removal case. Prior to this decision, Colorado family law judges frequently went through the statutory criteria and often found that there was not a good enough reason for the move of the children, especially if the other parent would lose a significant amount of parenting time, citing “the children’s best interests” in having frequent contact with both parents. Some of the legal analysis will also focus on how your parenting plan is wirtten, whether any relocation issues have been clarified by the terms of the parenting plan, whether there is joint decision-making authority in the original parenting plan as it relates to a change in schools, how the parenting plan sets forth a parenting time schedule, how expenses including travel related expenses for parenting time are dealth with, and unique issues such as drug and alcohol use, children with special needs, grandparents involvement, dispute resolution mechanisms in the original parenting plan, etc.
Since the Ciesluk decision of the Colorado Supreme Court, trial courts are much more frequently allowing the move, citing language in the decision about a party’s “right to freedom of movement” and often ignoring their prior comments about the children’s “best interests” being served by both parenting having frequent parenting time with the children.
Freedom of movement under United States law is governed primarily by the Privileges and Immunities Clause of the United States Constitution which states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” As far back as the circuit court ruling in Corfield v. Coryell, 6 Fed. Cas. 546 (1823), the Supreme Court recognized freedom of movement as a fundamental Constitutional right. In Paul v. Virginia, 75 U.S. 168 (1869), the Court defined freedom of movement as “right of free ingress into other States, and egress from them.” However, the Supreme Court did not invest the federal government with the authority to protect freedom of movement. Under the “privileges and immunities” clause, this authority was given to the states, a position the Court held consistently through the years in cases such as Ward v. Maryland, 79 U.S. 418 (1871), the Slaughter-House Cases, 83 U.S. 36 (1873) and United States v. Harris, 106 U.S. 629 (1883).
Because of these constitutional protections, the trial court does not have the authority to require a parent to reside in a particular or specific location. However, the court does get to decide whether the children may relocate out of the State of Colorado with the parent. And, trial court judges have wide discretion in making this decision.
Pursuant to Colorado Revised Statutes §14-10-129 of, 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. However, the statute in no way extends so far as to mandate that a parent reside in a particular location.
In deciding whether a child should be permitted to relocate with a parent, the court must determine whether the relocation is in the best interest of the child. To determine the best interest of the child, the court considers a number of factors as set forth above but also including the reasons as to why the parent wishes to relocate (i.e., a job opportunity, family, etc.), the availability of daycare in the new location, the quality of schools, etc.
If you are a parent contemplating relocation with a minor child, or if your spouse or former spouse is seeking to relocate the child outside of the State of Colorado, call our seasoned Colorado divorce attorneys today for a free telephone consultation to see if we can assist you on your issues at 303-688-3045.