Parental Relocation in Child Custody Battles – Part III

This is the third installment on our series about Colorado relocation or “removal” cases.  We first kicked things off by discussing ski racer Bode Miller’s contentious child custody battle and how it relates to Colorado’s legal framework for when a parent wants to move away from the other parent. Next, we looked at the seminal Colorado case from 2005, Spahmer v. Gullette, and relocation cases that occur when a court is allocating parental responsibilities for the first time. Below we deal with cases where a party wants to move after a divorce has been finalized.

The case on point for post-decree relocation cases is In re Marriage Ciesluk. In contrast to Spahmer where the Court must assume that a parent has already moved, Ciesluk allows a trial court to order a parent stay put in their existing place. Spahmer and Ciesluk were decided by the Colorado Supreme Court on the same day in 2005. To fully understand the differences between how pre- and post-decree cases are decided, Spahmer and Ciesluk should be read together. We’ve discussed Spahmer before so let’s shift our focus to Ciesluk.

In Ciesluk, the parents finalized their divorce shortly before mother filed a motion to relocate to Arizona with the parties’ little boy. The trial court denied mother’s motion to relocate on the basis that her move would harm the boy’s relationship with his father. The trial court relied heavily on an article by Sanford Braver. In doing so, the court effectively created a presumption in favor of the father.

The Colorado Supreme Court upheld the trial court’s application of the relocation statute, C.R.S. 14-10-129(2)(c), but found that the trial court unconstitutionally infringed on the mother’s right to travel by creating a presumption in favor of the father. The Supreme Court held that the relocation statute puts both parents on a level playing field by not assigning a burden to either parent.

Under Ciesluk, a trial court must consider the factors set forth in the relocation statute in addition to the statute on the best interests of the child under C.R.S. 14-10-124. The factors for C.R.S. 14-10-129(2)(c) are listed below.

  1. The reasons for relocation with the child;
  2. The reasons the opposing party is objecting to the proposed relocation;
  3. The history and quality of each party’s relationship with the child since the entry of any previous parenting time order;
  4. The educational opportunities for the child at the existing location and at the proposed new location;
  5. The presence or absence of extended family at the existing location and at the proposed new location;
  6. Any advantages to the child’s remaining with the primary caregiver;
  7. The anticipated impact of the move on the child;
  8. Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted;
  9. Any other relevant factors bearing on the best interests of the child.

These factors undoubtedly result in a much more robust analytical framework when compared to a pre-decree (Spahmer) case. And many divorce attorneys believe that there is a bright line between pre- and post-decree cases. That’s understandable if Spahmer and Ciesluk are merely skimmed.

However, the line is blurred when Spahmer and Ciesluk are closely examined. We’ll discuss what lines of argument are possible in our fourth and final post on Colorado relocation cases.

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