Chapter 5 - § 5.2 • RELOCATION AT THE TIME OF THE INITIAL DECREE

• Jurisdiction: Colorado

§ 5.2 • RELOCATION AT THE TIME OF THE INITIAL DECREE

Under Colorado law, there are actually two separate and distinct legal standards that govern a request to relocate by a parent.

First, a parent may request to relocate with the children as part of a divorce or initial allocation of parental responsibilities case. Whether or not the parties are married, the same standard for a relocation applies the very first time that a court enters any orders regarding parenting time and decision making. This standard only applies the very first time the court enters orders regarding parenting time and decision-making.

As a practical matter, these cases may be easier. Emotions may be running higher because of the nature of initial litigation (a separation of the relationship has most likely just occurred, after all), but neither parent has an established parenting time schedule, a routine, or rituals with the children. It is typically easier for a parent and the children to adjust to a long-distance plan when there has been no other post-separation plan for any significant period of time.

§ 5.2.1—Legal Standard

As set forth in more detail below, the "legal standard" for a pre-decree relocation is the best interests of the child standard, with a twist. If one parent indicates an intent to relocate, the court must "take the parties where they are" and engage the legal fiction that the relocating parent already lives in the new location.

Statutory Authority for Parenting Time

C.R.S. § 14-10-124(1.5)(a) sets forth the best interests of the child standard with regard to parenting time. Eleven factors are enumerated for the court to consider:

1) The wishes of the parents, C.R.S. § 14-10-124(1.5)(a)(I);
2) The wishes of the child — if the child is mature enough to express his or her preferences, C.R.S. § 14-10-124(1.5)(a)(II);
3) The "interaction and interrelationship" between the child and the parents, siblings, and other people that may impact the child, C.R.S. § 14-10-124(1.5)(a)(III);
4) "The child's adjustment to his or her home, school and community," C.R.S. § 14-10-124(1.5)(a)(IV);
5) The mental and physical health of all involved (except that if a party has a disability, that alone cannot justify restricting parenting time), C.R.S. § 14-10-124(1.5)(a)(V);
6) Whether a parent can support the relationship with the other parent, C.R.S. § 14-10-124(1.5)(a)(VI);
7) "Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support," C.R.S. § 14-10-124(1.5)(a)(VII);
8) The physical proximity of the parties and how that impacts practical parenting time arrangements, C.R.S. § 14-10-124(1.5)(a)(VIII). This factor merits further consideration, as it is the key factor that is spectacularly different in a relocation case. By definition, the parties will no longer be physically proximate, and the practical parenting time arrangements will look very different from what they would if the parents lived in the same city, or if one parent lived in Boulder and the other lived in Denver. In most relocation cases, the physical proximity of the parties is such that weekly contact between both parents and the children will not be logistically possible;
9) Repealed by Laws 2013, Ch. 218, § 2, eff. July 1, 2013;
10) Repealed by Laws 2013, Ch. 218, § 2, eff. July 1, 2013;and
11) "The ability of each party to place the needs of the child ahead of his or her own needs," C.R.S. § 14-10-124(1.5)(a)(XI).

It is critical, in any pre-decree relocation case, to look at all of the relevant factors. They all matter. Relocation is such a fact-specific analysis that each detail is critical to presenting a client's case and giving the court the necessary information to determine what is best for this particular family.

For example, the child may want to move to the new location because of expanded extracurricular activities, family, or friends. An extreme case might be where a child has developed some skill and interest in surfing and the new location is near the ocean.

Similarly, the relationship between the child and the non-relocating party is crucial, as is the relationship between the child and the relocating party. The court will want credible, verified evidence (not just the word of the parties) as to who has really acted as the primary parent, if anybody has, because of the potential harm to the children associated with a separation from their primary attachment. The court will want to know how involved the non-relocating parent has been with the children to gauge the harm to the children of being separated for extended periods of time from this parent.

The ability of a parent to support the relationship of the children with the other parent is crucial. Often, a relocation case comes down to who the court can "trust" the most. Which parent can the court better trust to support a long-distance relationship with the other parent? The court is tasked with...