Relocation in Family Law Cases - March 2006 - Family Law
| Publication year | 2006 |
| Pages | 47 |
| Citation | Vol. 35 No. 3 Pg. 47 |
2006, March, Pg. 47. Relocation in Family Law Cases - March 2006 - Family Law
March 2006
Vol. 35, No. 3 [Page 47]
Family Law
Relocation in Family Law Cases
by Kimberly R. Willoughby
This column is sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles are intended to focus on practice tips and discussions of current issues within the realm of family law. New column authors are welcomed.
Column Editors:
Gretchen Aultman, Denver, of Burns, Wall, Smith & Mueller, P.C. - (303) 830-7000, gaultman@bwsm.com; Marie Avery Moses, Greenwood Village, of Cook, Cooper & Moses, LLC - (303) 623-1130, marmoses@msn.com
About The Author:
This month's article was written by Kimberly R. Willoughby, Denver, of Willoughby & Eckelberry, LLC, where she specializes in family law, estate planning, and probate litigation - (303) 839-1770, kim@willoughbylaw.com.
This article discusses relocation law in light of the 2001 Uniform Dissolution of Marriage Act and the two most recent Colorado Supreme Court cases regarding parental requests to move out of state with minor children.
The Colorado Supreme Court recently decided two cases regarding relocation or "removal" matters.(fn1) These cases involve the majority time parent's(fn2) request to move with his or her child or children to a geographical location that would substantially change parenting time for the non-relocating parent - usually, but not always, out of the state of Colorado. The first case, In Re the Marriage of Ciesluk,(fn3) involved the request of one parent to move out of state after the divorce decree was granted. The second case, Spahmer v. Gullette,(fn4) involved the initial determination of parenting time when one parent wanted to move away from the state of Colorado.(fn5)
These were the first Colorado Supreme Court cases involving parental moves decided after the Colorado General Assembly amended the Uniform Dissolution of Marriage Act in 2001. This amendment modified CRS § 14-10-129 to directly address the issue of modification of parenting time when the majority time parent wishes to move with a child. This article provides an overview of relocation law and the 2001 statute. It also discusses how the Ciesluk and Spahmer cases impact relocation cases in Colorado.
Overview of Relocation Cases
In general, U.S. appellate courts analyze relocation cases in two ways: (1) by considering constitutional arguments; and (2) by considering social sciences arguments through the lens of the "best interests of the child."(fn6) The following alternative generalizations have been used by courts across the nation to guide the outcome of relocation cases:
1. A majority time parent generally should be able to move with a child.(fn7)
2. A child's best interests are paramount.(fn8)
3. The courts should analyze each case on its own merits and eschew generalizations and presumptions.(fn9)
Keeping these generalizations in mind, courts have taken different formalistic approaches in relocation cases, including:
* putting the burden of proof on the relocating parent
* putting the burden of proof on the objecting parent
* refusing to assign either parent the burden of proof
* giving the relocating parent a presumption that a move will be allowed
* giving the objecting parent a presumption that the child should remain in the state
* recognizing the constitutional rights of the relocating parent
* recognizing the constitutional rights of the objecting parent
* elevating the best interests of the child to a standard that trumps or is equal to the parents' constitutional rights.
Historically, Colorado appellate courts have alternatively taken the positions that: (1) in general, it is in the best interests of a child to stay in the state of Colorado, with both parents;(fn10) (2) in general, it is in the best interests of the child to stay with a custodial parent;(fn11) and (3) there is a presumption that a child should remain with the custodial parent unless the child would be endangered.(fn12) Now, Colorado courts use the "best interests standard" when making relocation determinations and give no presumptions to either parent and do not allocate the burden of proof to either parent.(fn13)
The 2001 Relocation Statute
Before 2001, there was no Colorado statute dealing directly with relocation requests and, as a result, case law was applied to relocation matters. In the case In re Marriage of Francis,(fn14) the Colorado Supreme Court developed a test for trial courts to apply when considering a custodial parent's request to move a child out of the state. First, a custodial parent had to present a prima facie case showing that there was a sensible reason for the requested move. Once the custodial parent presented a prima facie case, a presumption in favor of allowing the child to move with the custodial parent arose.(fn15)
The burden then shifted to the non-custodial parent to show that the move was not in the child's best interests.(fn16) The non-custodial parent could overcome the presumption in favor of the move by showing one of the following: (1) the custodial parent had consented to the modification of custody to the non-custodial parent; (2) the child had been integrated into the non-custodial parent's family with the custodial parent's consent; or (3) the child's present environment endangered his or her physical health or significantly impaired his or her emotional development ("the endangerment standard").(fn17) If no credible evidence of endangerment existed, the non-custodial parent could overcome the presumption in favor of a move by establishing, by a preponderance of evidence, that the negative impact of the move cumulatively outweighed the advantages of remaining with the custodial parent.(fn18)
This test was based on the Court's general philosophy that:
[A] child's best interests are served by preserving the custodial relationship, by avoiding relitigation of custody decisions, and by recognizing the close link between the best interests of the custodial parent and the best interests of the child. In a removal dispute, this leads logically to a presumption that the custodial parent's choice to move with the children should generally be allowed.(fn19)
In practice, under Francis, most majority time parents were allowed to move with a child. This created a certain degree of predictability and served the Court's goal of minimizing litigation.
However, in 2001, the Colorado General Assembly rejected Francis and amended the modification of parenting time statute.(fn20) CRS § 14-10-129(2)(c) abrogated the endangerment standard and replaced it with a "best interests" standard. Under the statue, when a majority time parent wishes to relocate with a child, the trial court must take into account all relevant factors, including nine new factors set forth in CRS § 14-10-129(2)(c), as well as the best interests factors set forth in CRS § 14-10-124(1.5).(fn21) The trial court must weigh the factors and determine whether the move would be in the best interests of the child.
CRS § 14-10-129(2)(c) as amended requires consideration of the following factors when determining the best interests of a child:
* the reasons for relocation with the child
* the reasons the opposing party is objecting to the proposed relocation
* the history and quality of each party's relationship with the child since the entry of any previous parenting time order
* the educational opportunities for the child at the existing location and at the proposed new location
* the presence or absence of extended family at the existing location and at the proposed new location
* any advantages to the child's remaining with the primary caregiver
* the anticipated impact of the...
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