MOVING OUT OF STATE
There are times in a divorce or custody case where a parent wants to move back to their home state or relocate to another location and away from Colorado. This may be for a number of reasons such as family support, a job change because of the divorce, or any variety of reasons. In Colorado, there are significant differences between moving during the divorce process and after the divorce is over. The law around moving after a divorce (or custody case) will be addressed in a subsequent blog post so stay tuned!
The law around relocations (as they are often referred to) in Colorado is fairly cut and dry, especially in a pre-decree (before initial divorce or custody case is resolved) case. In 2005, the Colorado Supreme Court issued an opinion called Spahmer v. Gullette. In that case, the Court said a Court has no authority to tell a parent where they may live. But it can determine where the child lives.
In an initial determination of custody (either in divorce or custody), a court has no authority to order a specific living location for a parent and instead must accept the location of where each party intends to live and determine a parenting plan in the best interests of the child.
What does this mean in a practical sense? It is important to understand that if a parent files a case, the automatic injunction goes into place. One provision of the injunction prohibits either parent from removing the child from the State of Colorado without written approval of the other parent or a court order. Therefore, if the other parent does not agree to the relocation, then it requires approval of the Court, almost always as part of the final hearing. Then, the Court will determine what a parenting plan should be for each parent living in their desired locations, taking into consideration various elements of the best interests of the child. This will involve looking at each parent’s historical role, the children’s ties to the current and future communities, school considerations, the practicality of creating a parenting plan (overseas relocations can be prohibitively expensive), and whether or not the family can financially work the relocation.
By way of example, if Parent A says that they are going to be moving to Texas when the divorce is finalized and they want the kids to move with them, and Parent B says they will stay in Colorado and want the kids to stay in Colorado, then we assume that Parent A will live in Texas and Parent B will live in Colorado. Then the Court applies best interests of the child standard and determine a suitable parenting plan.
If the relocation is “approved” the Court will likely adopt a long-distance parenting plan built around school breaks and holidays (if the child is of school age). Typically, there will also be provisions allowing for additional visits – sometimes in the new state and sometimes in Colorado. No two families or relocation situations are alike, so it is somewhat context dependent.
Given the complexities of these cases, it is vital that you have good legal counsel to assist in navigating that process, including good future planning. Please reach out to us to schedule your free initial consult today!