Important Considerations When Moving With Children by Dennis Babiniec

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Moving with Children either at the time of a divorce or after the permanent orders involves a complex analysis of factors.  Under Colorado law, different standards are used depending on whether the proposed move is before the divorce decree is entered or after.  It is important for the parent considering moving with a minor child or children to understand how their desire to move will affect the proceedings.  It is also important for the non-moving parent to understand their options if they do not agree to the move and wish to oppose it.

If a party is seeking to relocate with a minor child at the time of the divorce before any permanent orders have been entered, the case of Spahmer v. Gulette, 113 P.3d 158 (Colo. 2005) is authority for the principle that in Colorado, the trial court can not order a parent to live in a particular location, but must accept the intended location of the parent when determining the best interests of the child in allocating parental responsibility and parenting time.  The trial court however would consider the best interests of the child with respect to the benefits and drawbacks to the child of the parents living in different locations.  Therefore a scenario is possible where the negative effects of the child living with the parent that wishes to relocate would outweigh the benefits of the child living with the relocating parent, where perhaps if not for the intended move, the analysis would be different.

When a parent wishes to relocate after the divorce decree and permenent orders have been entered in Colorado, the parent should be aware of C.R.S. 14-10-129 (1) (a) (II) requirements of providing written notice as soon as practicable of thir intent to relocate, the location where the party intends to reside, the reason for the relocation and a proposed revised parenting time plan.  If the other parent does not agree to the move and a modified parenting plan, a motion would need to be filed with the court.  The statute states that such a motion shall be given priority on the court's docket.

The case of In Re the Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005) is authority in Colorado for the principle that both parents share equally in the burden of establishing what is in the best interests of the child.  Therefore, there is no built in advantage in favor of the moving party who already has the majority of parenting time as far as the burden of proof.  But on the other hand there is no built in presumption against the moving party either.  So in other words, the issue of relocating the minor child reopens the consideration of the best interests of the child under C.R.S. 14-10-124 in additional to the specific factors enumerated in C.R.S. 14-10-129 (c) (I)-(IX).  Therefore, a motion to modify the parenting time because a parent wishes to relocate can reopen the issue of the allocation of parental responsibility and parenting time.  The moving parent should consider whether they wish to take such a risk if the non-moving parent will oppose the motion to relocate and if so, make sure the reasons for the move and affect of the move on the minor child can be demonstrated to show a benefit to the child.  On the other hand, the non-moving party who objects to the relocation, can get a second chance to have the court revisit the issues of parental responsibility and parenting time due to the motion to relocate.

Therefore, a party seeking to move should understand the factors under the Colorado statutes and consider the risks of how the request to relocate could affect the factors considered by the court regarding the best interests of the child.  A party that objects to a request to relocate, should be prepared to set forth the factors regarding the best interests of the children if the court were to grant them primary parenting time.

I consider the relocation issue an important one for someone on either side of the request to move, to obtain legal advice and become informed of the statutes and law in Colorado before they make any decision, in order to understand the potential benefits and risks of the move or opposing the move.

If you have a case where relocation is involved, I would like to help.  For a free initial consultation Call: 303-451-9110 or go to the contact page of my website: http://www.divorcelawyerdenver.net

by Dennis H. Babiniec
Attorney at law
10701 Melody Dr., Ste. 350
Northglenn, CO 80234
303-451-9110


  posted: January 21, 2014 - Dennis Babiniec - Divorce Lawyer - Blog

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