Though we can all look back to a time when people were born and raised in one town or one state, the reality is that today’s society is both national and transient in nature. People work for national companies, with multiple locations. Job transfers to new areas of the country are a fact of modern day employment and the 21st century economy. People no longer stay put in one location. Aside from employment situations, people with children may have other reasons to move from Colorado, such as acceptance into an out of state university, military reassignment, or a desire to just be closer to a family support network somewhere else. When families or couples are together or intact, these moves are just part of life and everyone jointly rolls with the changes to come. However, things can be entirely different, and moving can be much more difficult, for people either going through an initial Colorado custody or divorce case, or those wanting to move at some point after final orders are entered. As a basic premise, one must keep in mind that obtaining court permission to move pre-decree or pre-final orders can be a much easier proposition than seeking to move at some point in the future after the initial phase of a case is done.
Prior to the entry of final orders in a Colorado custody case, or divorce with children, both parents have equal rights to children and there is no specific law, per se, that prohibits one party from just packing up and moving with the children. However, once a family law case involving children is filed, Colorado statute, either Colorado Revised Statutes section 14-10-107 or 14-10-123, precludes people from leaving the state with the children while the case is pending, absent agreement from the other party or an order of the court. If a case has not yet been filed and one parent moves from Colorado with the children, there is no statutory violation under sections 107 or 123. That being said, our courts, depending on the circumstances, have the power to order the party who left with the children prior to a case being filed to return them to Colorado. This might occur in situations in which a party just left Colorado with the children, absent an agreement or notice to the other party, and the other party timely files an emergency motion requesting their return. In such instances, the court may look at how long the party and children have been gone prior to filing, whether the other party knew of their whereabouts, or other logical factors tying into whether it is in the children’s best interest to come back.
Aside from emergency or spontaneous type situations, there are two types of custody battles which can arise related to one person being able to move with the children from Colorado. The first situation entails a party, as part of the pre-final orders custody or divorce process, making a request to move from Colorado with the children as part of the final orders. In these pre-final orders situations, which are governed under a case titled Spahmer v. Guilette, 113 P.3d 158 (2005), a court must make an assessment of where the children would be better off, or rather with which parent they would be better off primarily residing with, from a best interest standard, and enter orders accordingly. Under a Spahmer analysis, a court should start with the presumed fact that one parent wishes to have primary physical custody elsewhere, let’s say California, and the other parent wishes to have primary custody here, in Colorado. Sadly, these are somewhat all or nothing propositions in that there is not really middle ground, such as a 50/50 visitation schedule. In the end, if a party is allowed to move with the kids, the court will, in theory, enter orders for parenting time with the parent remaining in Colorado, which will generally have to be adapted around school breaks, summer vacation, etc. Orders will also include provisions related to travel costs.
Though judges do not have to do so, they may enter orders indicating that if party ‘A’ intends to move, custody and visitation will be ‘X’. If party ‘A’ stays in Colorado, visitation will be ‘Y.’ Under a Spahmer analysis, a court should not look punitively at the party wishing to move and the legal battle should not necessarily be about who has the better community, which state has the better schools, etc. The focus should really be about which parent is better equipped to exercise primary residential custody. That being said, in reality, the person seeking to move is often looked at with a grain of skepticism in terms his or her ability to really foster a relationship with the other parent being questioned by that parent, experts in the case, or the court. “How could one care about including the other parent in the children’s lives while seeking to move them away in the same breath?” Thus, under a Spahmer analysis, it is important to still set forth a logical basis for the move, provide information as to the new location, and most importantly, to demonstrate that the move is in no way intended to deprive the other parent of time with the kids. In essence, a Spahmer analysis is a de-novo assessement of who would be the better residential parent, with the twist of one party wanting to move.
Aside from understanding the issues at hand or the legal and factual concepts at play, it is equally important to understand how to deal with those issues and concepts in an effective manner. A wide array of variables can come to play and each factor may have significance. In reality, whether pre or post final orders, the system, as a whole, tends to gravitate towards the notion that moving children away from Colorado and the other parent is a bad thing. In essence, it wil be an uphill battle in most instances. The next post(s) on this topic will focus on post-decree relocation, governed by a case called Ciesluk, as wells as legally and tactically navigating either scenario, in and out of the courtroom.
