Bode Miller can take his son to the Winter Olympics in Sochi, Russia during the pendency of his child custody dispute. That sort of agreement would be unlikely in a Colorado case where one parent wanted to permanently relocate. The obvious difference in Bode’s situation is that he’ll be returning to the U.S. after the Games.
Speaking of differences, the last time I wrote about parental relocation I mentioned that there was a significant difference in Colorado between a pre- and post-decree relocation dispute. What are they? The short answer is that it is easier for a parent wanting to relocate before a court issues a final order (decree) allocating parental responsibilities versus after.
In Bode Miller’s case, the court has yet to finalize anything. Yes, he can go to the Olympics with his son. But that agreement was recently approved by the court as a “temporary order.” An agreement or judicial determination on where the child will permanently live has yet to be made. Miller and the mother, Sara McKenna, are still in an unsettled state. They can’t even agree on what to call the child – Miller calls him “Nate,” McKenna calls him “Sam.”
The uncertainty of Miller’s situation exemplifies one of the reasons why the Colorado Supreme Court held that a trial court must accept the location where each parent intends to live during the initial determination to allocate parental responsibilities. The name of that case is Spahmer v. Gullette. The Colorado Supreme Court reasoned that parents are on equal ground when initially determining parental responsibilities such as a divorce. For example, neither Miller nor McKenna has definitive parenting time or decision-making authority yet — indeed, that is the end result of the action itself.
In contrast, after a divorce (or an order is issued for unmarried parents) is finalized, each party has vested parenting rights. If one parent wants to move, it will undoubtedly reduce the other parent’s legally-recognized rights. Moreover, there is a degree of stability achieved for the child after a decree setting a parenting schedule has been issued. We’ll examine post-decree relocation cases in detail later, but it helps to understand the basis for Spahmer.
Spahmer requires everyone involved – the judge, attorneys, parties and any expert parent evaluators – to view the situation through an overly simplistic lens. The parent intending to move cannot leave the state with the child during the pendency of the case unless they have permission from the other parent or there is an extraordinary circumstance that would justify a court order. McKenna gave Bode Miller permission to take their son to the Olympics because she knew he’d return home. For a parent intending to permanently move, the risk of allowing them to travel out of state with the child is that they will never come back. Therefore, Spahmer results in a legal fiction where both parents are physically in Colorado, but one parent is looked at as if they’ve already moved.
So what does the Court consider when dealing with a Spahmer case? The “best interests of the child.” The statute, C.R.S. 14-10-124, for the best interests of a child explicitly contemplates the following factors:
- The wishes of the child’s parents as to parenting time;
- The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
- The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
- The child’s adjustment to his or her home, school, and community;
- The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
- The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party’s protective actions shall not be considered with respect to this factor;
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
- The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
- The ability of each party to place the needs of the child ahead of his or her own needs.
Arguably the above list opens the door to a discussion about the difference in crime rates, schools, familial support, jobs, and cost of living between the new and existing locations. For example, a parent who wants to stay in Aspen would inevitably cite the quality of schools. In contrast, a soon-to-be single-mother in Vail will justify her planned move because she’ll have the support of her family in a less expensive place like Denver or elsewhere.
As we’ll see next time, those sorts of arguments may not come in under the simplistic analysis of Spahmer because they’re explicitly reserved for post-decree relocation disputes under C.R.S. 14-10-129.