Chapter 5 - § 5.3 • POST-DECREE RELOCATION

• Jurisdiction: Colorado

§ 5.3 • POST-DECREE RELOCATION

Sometimes, circumstances change after the entry of the initial parenting plan that lead one parent to request a relocation with the children. These cases are governed by an entirely different legal standard.

These cases may also be, from a logistical standpoint, more difficult to resolve and more problematic in the long term. First, the parents do have an established parenting schedule and vested expectations regarding participation in major decisions and contact with the children. All of that flies out the window in the context of a post-decree relocation. Second, the parent that does not want to move may feel an acute sense of attack from a post-decree request to relocate. Perhaps the relocating parent has a new relationship in another place — the non-moving parent may feel like he or she is being replaced by the new significant other. These cases represent some of the hardest-fought and most conflict-ridden cases that face the judicial system.

§ 5.3.1—Legal Standard

In a post-decree parenting time case, just as in a pre-decree one, there are two components to the governing legal standard — statutory and case law.

In this case, the Colorado legislature has set forth a particular analysis that the court must consider in the majority of relocation cases. The Colorado Supreme Court has also imposed a specific balancing test to address all of the constitutional issues raised by a parent's request to relocate.

Statutory Standard

The governing statute for post-decree relocations is the modification of parenting time statute, C.R.S. § 14-10-129.

Most relocations tend to fall under C.R.S. § 14-10-129(2)(c), which specifically provides for modification of parenting time if the majority-time parent is seeking a relocation. Note the limitation on the applicability of this section to the majority-time parent, although courts typically apply this standard if the parents have equal parenting time as well.

The relocation standard imposes certain requirements on the relocating parent at the outset of the case:

1) The relocating parent shall provide written notice of his or her intent to relocate as soon as practicable, C.R.S. § 14-10-129(1)(a)(II);
2) The relocating parent shall include in the written notice the reason for the relocation and the proposed new location, id.; and
3) The relocating parent shall provide the other parent with a new proposed parenting plan that addresses the relocation, id.

Once those standards are met, the issue is entitled to priority on the court's docket. C.R.S. § 14-10-129(2)(c). Relocations are often time sensitive. One party may have a new job in the new location that will not remain available indefinitely. Similarly, it is not ideal for the children to move mid-school year or semester.

The court is then required to consider the following:

1) The best interests standard, id., referring to C.R.S. § 14-10-124(1.5)(a);
2) Whether a party has been a perpetrator of domestic violence as defined by C.R.S. § 14-10-124(1.3), id.;
3) The reason for the relocation, C.R.S. § 14-10-129(2)(c)(I) — note that the post-decree relocation standard markedly differs from the pre-decree standard in this respect. As discussed above, from a strictly legal perspective, the reasons for the relocation are not relevant in a pre-decree context because the court must take the parties where they are;
4) The reasons for the objection to the relocation, C.R.S. § 14-10-129(2)(c)(II);²
5) The historical relationship of each party with the child pre-relocation request, C.R.S. § 14-10-129(2)(c)(III);
6) The relative educational opportunities for the child in the two possible locations, C.R.S. § 14-10-129(2)(d)(IV) — this is often the most "objective" of the factors, and disproportionate weight gets placed on it because it presents an opportunity for both parents to advocate for their position using facts. As a practice tip, test scores alone are not particularly persuasive to courts and will be lumped as one of many factors to be considered, but compelling evidence that one particular educational opportunity is preferred for the particular child or children in the case may weigh more heavily with the judge;
7) The relative access the child will have to extended family at the two possible locations, C.R.S. § 14-10-129(2)(c)(V) — this is another "objective factor" that gets a lot of attention. It may seem easy to simply "add up" the extended family available in each location, but not so fast. There may be more extended family in the new location, quantitatively, but the child may be particularly bonded to the extended family in the existing location, such as when a grandparent has provided extensive child care. Disrupting that relationship may be damaging to the child. On the other hand, if there is no extended family, or minimal extended family in the existing

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