Removal Issues and Standards for Modification of Custody
| Publication year | 1995 |
| Pages | 1045 |
| Citation | Vol. 24 No. 5 Pg. 1045 |
1995, May, Pg. 1045. Removal Issues and Standards for Modification of Custody
In general, there has been a trend toward liberalization in granting requests for removal of a child from the jurisdiction. The analysis in this article is designed to give an overview of the development of the relevant case law.
Tantilla v. Tantilla,(fn1) decided in 1963, was one of the earlier cases to address the issue of removal. In Tantilla, there were three children, ages 7,5 and 4. The mother was granted custody. In a stipulation, the mother agreed that she would not remove the children from Colorado without agreement of the parties or order of the court.
The mother filed a motion seeking to remove the children from Colorado to relocate to Minnesota. Three months later, the court granted the mother the right to relocate. The father appealed, arguing that it was error to grant removal without proof that the best interests of the children would be served by removal. The Colorado Supreme Court held that
removal of a child rests in the sound discretion of the trial court but there must be some evidence supporting a conclusion that the children's welfare and best interests will be promoted by their removal.(fn2)
The court held that in considering what is best for the welfare of "a child of tender years,"(fn3) the court must consider not only food, clothing, shelter, care, education and environment, but also must bear in mind that every such child is entitled to both parents.
In reversing the trial court's determination that the mother could relocate, the Supreme Court strongly considered that the order permitting removal eliminated any opportunity for visitation rights by the father except during the summer. The court also considered that the father contributed substantial financial support. The father had adequate financial means to supply all of the reasonable requirements of his children. The mother's reason for removal in order to achieve "cheaper" living was not reasonable under the circumstances. The court stated that
if the best interests of the children require[d] that the mother spend more time with them and less at work, then the resources of the father are adequate and the trial court should so adjudge if the showing made justified such an order.(fn4)
In the 1982 case of Casida v. Casida,(fn5) the father appealed the trial court's order denying his request to prohibit the mother from removing the parties' minor child to relocate to New Jersey. The agreement of the parties granted sole custody of the child to the mother, and there was no nonremoval clause. The court permitted the mother to relocate temporarily and reserved the issue of whether a permanent move from Colorado to New Jersey would be in the best interests of the child.
The Court of Appeals found that the father's request was, in effect, a request for a change in custody and determined that none of the provisions of CRS § 14-10-131 had been met. The court held that absent a restrictive condition in the applicable provisions of the dissolution decree or separation agreement:
[A] custodial parent is granted great latitude in carrying out the custodial responsibilities of providing a primary home for the minor children. The custodial discretion may include removal of the children from the jurisdiction of the court which entered the permanent orders. Inevitably, such relocations require sensitive adjustment of visitation rights and responsibilities, and when parents disagree respecting a proposed change of the custodial parent's residence, questions of custody may be raised. Applicable procedural and substantive legal principles, including appropriate allocation of burden of proof, necessarily will vary with the circumstances of particular cases.(fn6)
When the husband alleged that the move was detrimental, he had the burden of proving it. The Court of Appeals...
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