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Relocation Case Law Update: how, when, and why a move might impact your custody case

Relocation Case Law Update: how, when, and why a move might impact your custody case

The issue of relocation in family law cases can be complex.  “Relocation” becomes an issue when a parent wishes to move, with the minor child(ren), to a distance that impacts the geographical ties between the other parent and the child(ren).  The court applies a different standard, depending on whether you or your co-parent are expressing your/their desire to move before or after any orders have been entered by a court.

In 2005, the Colorado Supreme Court heard the still-controlling pre-decree relocation case of Spahmer v. Gullette, 113 P.3d 158.   The Court concluded that the district court “must accept the location in which each party intends to live, and allocate parental responsibilities, including parenting time, accordingly.”  Id. At 164.

Since that decision (and its post-decree relocation counterpart In re the Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005)), the question is often asked of the parent seeking to relocate with the children, “Would you still relocate if the Court ordered the children could not?”  Depending on the circumstances, the parent often responded something to the effect of, “Absolutely not.”  Spahmer did not specifically provide guidance as to how to address this admission.

On the one hand, it seems simple.  If the parent admits under oath that he or she would not relocate without the children, then the court could order the children remain in Colorado and follow a more shared parenting time schedule with each parent.  This outcome would be found to be in the children’s best interests and obviates the need for the court to create a difficult long distance parenting plan.

On the other hand, the parent, regardless of his or her admission, has requested permission to relocate the children based on his or her stated intention to relocate.

In August of 2018, the Colorado Court of Appeals released its opinion in In re the Marriage of Morgan, 2018 COA 116, 16CA1951, clarifying how the district court should interpret these seemingly varied positions.  In Morgan, Mother stated her intention to move to California several times throughout the course of the parties’ divorce and at trial. However, she also admitted she would not relocate if the children were not permitted to relocate with her.  Relying on this statement by Mother, the district court ordered the children follow an equal parenting time schedule on a “5/2/2/5” basis, thus requiring Mother to remain in Colorado to be able to adhere to the parenting plan.

The Court of Appeals reversed the decision and clarified that the district court had to apply Spahmer, which required the court to accept Mother’s intention to relocate and order a parenting plan as if Mother were to live in California.  The Court of Appeals did not find Father’s argument compelling that Mother’s admission that she would not relocate without the children made her request to relocate “ambiguous”.  This holding calls into question the relevance of asking the parent seeking to relocate whether or not they would, in fact, relocate without permission to take their children.

What this means is that, if you or your co-parent has expressed a desire to move, and if orders have not been previously entered by the court, it may not be relevant whether they will stay, if the court determines that the children should not move with them.  Depending on the facts of your case, this could either help or harm the position that you have taken regarding parenting time.

Every family law case is difficult.  Relocation cases are arguably even more difficult, as there is often little room to compromise, and parents walk away feeling either like the “winner” or the “loser”.  If you find yourself desiring to relocate with your children, or if you are the objecting parent, it is best to consult with an attorney regarding these complex legal issues with very high stakes.  Our lead family law attorneys at GEM Family Law are prepared to walk you through this process and help you weigh your best options.

Authored by: Rebecca Baer, Esq.

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