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Child Custody Relocation and Moving Out of State with Joint Custody

As may be imagined, when one parent relocates out of the home area with a child, the impact on the relationship between the child and the non-relocating parent can be profound. No longer can that parent participate in the same way within their child’s daily life. For that parent, watching soccer practice or ballet lessons, meeting their child’s friends or having them over for dinner, and participating in their child’s medical appointments or conferences with teachers all comes to an end with their child’s relocation. For the other parent, however, a brand new chapter in life begins with their child in a new city. Such a dichotomy often strains whatever positive relationship the parents might have shared, forever changing the life of their child. While the impact on parents and children alike from relocation cannot be overestimated, there are steps you can take to make the child custody relocation process more stable and amicable for everyone. Work with our Fort Collins lawyers to understand the custody law for moving out of state and maintain a positive situation.

Who Can Commence a Child Custody Relocation Action?

Relocation actions can only be brought by a majority-parent or by a parent who shares an equal parenting-time schedule. The minority-parent may not bring a relocation action, but, instead, would bring a modification action, which applies very different standards from a relocation case.

Initial-Decree Relocation versus Post-Decree Relocation Standards

Colorado divides child custody laws for moving out of state and relocation matters into two categories. The courts apply one standard for relocation at the time of the initial decree and another for relocation actions brought after the initial decree is entered, called “post-decree.” It is important to note that in all matters concerning parental responsibilities and parenting time, be they pre- or post-decree, the best interests of the child are the primary consideration of the court.

The initial-decree relocation standards are applied when the initial determination is made by the court about the allocation of parental responsibilities and parenting time. This can be part of a divorce action, a separation or can be its own case. The court assesses these cases as if the relocating parent already lives in the new location, with the parent’s reasons for relocation forming no part of the assessment.

Post-decree relocation standards are applied at a time after the initial decree has been made, and include an additional set of standards to be applied by the court. In large measure, the additional standards applied in post-decree actions result from the fact that a pattern has been established between the child and each parent and expectations have developed for everyone about continuing contact and participation in the life of the child. It is here where a parent’s reasons for relocating become relevant and why they form a part of the court’s assessment.

The process required for a majority-time parent seeking post-decree relocation begins very differently because the court order already in place regarding parenting-time, allocation of parental responsibilities, and decision-making will have to be modified.

Prior to bringing any action, the parent seeking relocation must (1) give the other parent written notice of the intent to relocate, the reason for relocation, and the proposed location of the move; and must (2) provide a proposed parenting plan to the other parent in view of a relocation.

Standards Applied by the Court in Initial-Decree Relocations

Again, in these cases, the court begins by viewing the relocation as already in place. The court then applies the best-interest standards aiming to determine what is in the child’s best interest.  To this end, the following factors are taken into consideration:

  • The wishes of each parent
  • The child’s wishes, if the child is mature enough to express a preference
  • The “interaction and interrelationship” between the child and each parent, siblings, and other people who have an impact on the child’s life
  • The adjustment of the child to home, community, and school
  • The health of everyone involved, both mental and physical, although a party’s disability cannot alone justify any restriction on parenting time
  • Whether there is a past pattern of involvement with the child by either parent that reflects mutual support, a commitment of time, and a system of values
  • How the physical proximity of the parties relates to parenting time arrangements, a factor considered differently in relocation cases than when the parties live close to each other
  • Whether, by credible evidence, one of the parties has been the perpetrator of child abuse or neglect

How much weight a particular court will assign to any individual factor in determining the best interests of the child is unknown.  As a result, it is imperative to have the factual information that supports, or opposes, each and every one of the factors set forth, whichever side of the issues one is on. These factors provide the court with the foundation of what must be assessed. The facts presented on these factors provide the court with the basis for its final determination.

Who presents the facts in support or against the factors for each parent is as important as the facts themselves. For example, the parties testifying that they have a close relationship with their child will not have the same impact as teachers, daycare providers, medical professionals, or other third parties testifying about the relationship they have observed between parent and child or about that parent’s participation in their child’s daily life. Likewise, a parent saying that they will foster a relationship between the child and the other parent has less impact than testimony from a third party, with no personal stake in the outcome of the litigation, who has regularly witnessed these positive actions. From the other side, a third party testifying about one parent’s actions to damage, rather than foster, the relationship between the child and the other parent will have a significant impact. The point is that, while important, the testimony of each parent will not make or break these cases, but rather the testimony of third-party witnesses as to the facts supporting or opposing each of these factors applied by the court.

Certain factors that require more than the parties’ testimony are critical to these cases. As mentioned immediately above, whether one parent can foster a relationship with the other parent is crucial. The court is under an obligation, by statute, to encourage “frequent and continuing contact” between parent and child (C.R.S. §14-10-124(1)). Thus, if one parent is likely to emotionally or psychologically distance the child from the other parent, when we already expect the physical distance, a court will not be comfortable making that parent primary. The lesson to be learned is that fostering your child’s relationship with the other parent will never come back to harm you, whereas actions to damage the other parent’s relationship with your child can negatively influence a court. Because a failure to foster the child’s relationship with the other parent could certainly harm the child, a court will never support an act to harm a child, nor add to the harm the child has already experienced if it can be avoided.

Another critical factor is the nature of the relationship between the child and the non-relocating parent. Considerations here include who acted as a primary parent from the child’s birth until the case began. Again, the court does not want to cause harm to the child. If child custody relocation by one parent tears the child away from the only parent the child has known as their parent on a daily basis, a court will be loath to allow it. If the non-relocating parent has no regular contact with the child, the impact of relocation on the child’s relationship with that parent will be minimal by comparison. On these matters, the court will want and expect third-party testimony, since the parents’ testimony will likely be insufficient and self-serving.

Standards Applied by the Court in Post-Decree Relocations

By statute, specific standards apply when the majority-time parent, or equal-time parent, seeks relocation with the child. Remember that when the minority-time parent seeks to relocate with the child, that constitutes a modification of the existing order and requires a completely different set of standards. In post-decree cases, note that the reasons for the relocation, and for opposing the relocation, become major parts of the determinations in these decisions, whereas these factors are not considered at all in initial-decree relocation cases.

Standards have been established to be applied by the court, but no requirement is placed upon the court to set forth specifically how much weight was given to any particular factor. Simply put, the court has the power to make any decision it wants, weighing each factor in whatever way it deems appropriate, and with no duty to reveal precisely how the decision was reached. Keeping this in mind, below are the factors to be applied by the court in a post-decree action for relocation with a child by a majority-time parent:

  • The best interest factors listed above for initial-decree relocation
  • An assessment of whether either party has been the perpetrator of domestic violence
  • The reasons for the relocation
  • The reasons for objecting to the relocation
  • The relationship between each parent and child from a historical perspective
  • Educational opportunities for the child in each location – the child’s preference may have some weight here along with many other factors
  • Access the child will have to extended family in each location, including such considerations as the disruption of existing strongly-bonded relationships versus the possibility of forming new ones at the new location
  • Any advantage to the child in residing with the primary care-giver, the importance of which may be linked to the age of the child
  • The overall effect of the move on the child
  • The possibility of establishing a reasonable parenting time schedule, if relocation is allowed
  • Any other relevant factors, which would include anything else the court deems appropriate

In all legal matters, one party has what is called the “burden of proof,” meaning that the party must prove their case adequately to support what they are seeking before the other side has to prove anything. In relocation cases, Colorado has established an uncommon situation, through case law interpreting statute, where both parties have an equal burden of proof. Assuming both parties are successful in meeting their burden, the court then has the burden of taking all of the evidence presented and determining what is in the child’s best interest.

The court has the further burden of forming a parenting schedule in all possible scenarios:

  1. If the relocation with the child is allowed
  2. If the relocation of the children is not allowed and no relocation of the parent occurs
  3. If the relocation is not allowed and the parent relocates without the children

The relocating parent is required to put together a parenting plan, so the court will have at least that plan as a proposal should the relocation be allowed. The other parent may submit a parenting plan as well, but is not required to do so. The court will likely consider any plans before it, but is neither required to use such plans, nor would the plans cover all possibilities in terms of location of the parents.

All observations set forth above for initial-decree standards regarding testimony and the importance of the best interests factors apply here as well, but will be augmented by the additional factors required for post-decree relocation actions.

Standards for Determining Decision-Making in Relocation

In determining how decision-making will be allocated or shared between the parents, the court again employs the best-interest factors set forth above, any other factors relevant to the matter, and the following:

  • Credible evidence of the parents’ ability to cooperate and to make decisions jointly
  • Whether the parties’ history of involvement with the child reflects a system of values, time commitment, and mutual support indicating an ability to provide a positive and nourishing relationship with the child as mutual decision-makers
  • Whether an allocation of mutual decision-making responsibilities will promote continuing or more frequent contact between the child and each of the parties (C.R.S. §14-10-124(1.5)(b)).

Noteworthy is the expansion of the best-interest factors set forth above in the considerations used here for decision-making purposes, further demonstrating the crucial nature of fostering the relationship between parent and child and promoting contact between parent and child.

The relationship between the parents often reflects their ability to foster the relationship with the other parent. Ultimately, if a parent lacks either the ability or the inclination to cooperate in the goal of mutually making decisions for the benefit of the child, they will lose the option of decision-making authority altogether.

CONCLUSION

The court does not have the power to prevent a parent from relocating. However, the court’s power can prevent the child from relocating away from the other parent.

Many reasons motivate a parent’s choice to relocate. Although the court does not consider the reasons for an initial-decree relocation determination, this does not mean those reasons do not have an effect on the relationship between the parents and the child. Yet, for post-decree relocations, those reasons absolutely matter. Relocations may be sought when a job transfer is immediately forthcoming, the new “significant other” of a parent lives elsewhere, or perhaps an educational program of benefit to the child is only available elsewhere.  Sometimes a person just wants a new location to get a better tan or to look for a different job, and this just seems like the right time. In other words, these matters run the spectrum from the need of employment to support the family, to self-serving desires.

In the end, relocating with a child will never be a simple matter free of emotional, logistical, or legal challenges whenever another parent is involved in the child’s life. Every party in the relocation action will be profoundly affected by the move, above all the child. How parents handle this process and make a concerted effort to minimize the negative impact on their child can make all of the difference.

When faced with custody laws for moving out of state in Colorado, you require an attorney who can fight for you while keeping the child’s best interest in mind. To discuss your relocation and parenting time case with one of our Fort Collins family lawyers, contact us today for a consultation.


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