Moving the Children Out of State
| Publication year | 1983 |
| Pages | 1450 |
| Citation | Vol. 12 No. 9 Pg. 1450 |
1983, September, Pg. 1450. Moving the Children Out of State
The decision to move out of state with the children by the custodial parent almost inevitably results in disruption of the pattern of visitation between the children and the other parent. Additional travel time may make evening or weekend visitations impossible. Increased transportation expenses may seriously alter the total family budget and affect the frequency of visitation. Unless the decree or separation agreement has addressed the issue or the parties come to an agreement, the courts will be called upon to determine whether the children may move and what modifications will be made to the parties' relationships with the children. The custodial parent is likely to view the decision as his or her prerogative, one of the many day-to-day decisions which it is the right and responsibility of the custodian to make.(fn1) The noncustodial parent is more likely to view the move as an impermissible restriction(fn2) or even denial of his or her visitation rights and of the children's visitation rights.
This article discusses current Colorado law on the rights of the custodial and non-custodial parents when the custodian proposes to move out of state with the children.
When the custody decree or separation agreement does not restrict the custodial parent from moving with the child, the custodial parent may change the child's permanent home without seeking court approval, and the burden is on the other parent to institute proceedings to prove that the move is not in the best interests of the child. This is the holding of Casida v. Casida,(fn3) the most recent Colorado case on the issue. In Casida, the separation agreement that was incorporated into the dissolution decree placed custody with the mother, gave reasonable visitation rights to the father and was silent as to removal of the child from Colorado. Two years later, the father moved the court to prohibit the mother from leaving Colorado with the child, alleging that the move would be detrimental to the best interests of the minor child.
The trial court found that (1) there was no showing that the ^^ would be detrimental "as it applies to the minor child,"(fn4) and (2) it was in the child's best interests to remain with the custodial parent in the state of New Jersey.(fn5) The court viewed the father's petition to be, in effect, a request for modification of custody and found that the conditions required for modification(fn6) were not established by the evidence. The trial court proceeded to revise the visitation rights in view of the changed circumstances. The father appealed the denial of his motion and the Colorado Court of Appeals affirmed the trial court's judgment.
Both the trial court and the Court of Appeals seem to have applied the standard of "best interests of the child" in Casida, rejecting other possible standards. The trial court, however, stated that the father's motion was, in effect, one for custody modification, which involves a different standard. This may have been based on the pleadings, or on the court's perception that a trial court which finds such a move to be detrimental to the best interests of the child must fashion a remedy which includes modification of custody, at least as an alternative. (Since a citizen's constitutional right to travel(fn7) prevents a state court from prohibiting the custodial parent from travelling to another state, the parent cannot be prohibited from moving, but only from removing the child.)
The standards for modification of custody(fn8) are a change in circumstances of the child or the custodian (which will be easily established) and the necessity of modification to serve the best interests of the child (which will have been litigated). However, in applying these standards, unless the custodian agrees to the modification or has consented to the integration of the child into the other parent's family (neither of which will have occurred), the court must retain the prior custodian unless the child's environment endangers his physical health or significantly impairs his emotional development.(fn9)
The Court of Appeals did not discuss this suggestion of a higher standard for relief. Rather, the court stated: "As custodial parent, absent restrictions contained in the dissolution decree or separation agreement, she had broad discretion to leave the state of Colorado with the child so long as such move was in the best interests of the child."(fn10)
The Court of Appeals rejected the father's suggestion that the mother be required to meet the standard for restricting visitation rights. The Uniform Marriage and Divorce Act ("Act") section addressing modification of visitation(fn11) does not allow the court to restrict a parent's...
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