What is Relocation of Children?
Simply put, relocation of children means that, after a divorce or other parenting decree, a parent with primary or co-equal custody “is intending to relocate with the child to a residence that substantially changes the geographical ties between the child and the other party.” C.R.S. 14-10-129(2)(c). It could mean moving a child from Colorado entirely, or moving within the state, but some distance away from the other parent.
Relocation requires either the other parent’s consent or permission from the court. And if permission for moving the child is denied, the relocating parent chooses either to remain in Colorado, or to move anyway without the child. Moving anyway would result in a change in child custody, as the children would then reside with the other parent.
At least this is the way it works most commonly, as most child relocation cases involve two parents living in the same area as one-another, and one parent is seeking to move the children to a location away from the other parent. For a complete discussion of relocation of children, see our relocation of children article in the Colorado Family Law Guide.
Moving a Child Lowers Legal Burden to Change Custody
Less commonly known in family law is the fact that if a majority parent files a motion seeking to relocate the children, the court could not only deny moving the children, but could change primary custody from the relocating parent to the other parent – even if the relocating parent changes his/her mind and does not move!
Though the original custody determination is based upon the “best interests of the children,” once a parent has been designated as the primary residential parent, post-divorce it normally requires endangerment to change custody over that parent’s objection. C.R.S. 14-10-129(2). This higher standard provides the children with stability, and prevents them bouncing from one house to the other simply because the other parent may later become slightly better than the custodial parent, at some moment in time.
However, when the majority parent is seeking to move the children away from Colorado, C.R.S. 14-10-129(2)(c) relaxes the endangerment standard, and allows the court to change custody based upon the best interests standard. This is a trap for the unwary in relocation of children cases.
Relocation of Children When Parents Live In Different Places
And even less well-known than this is the fact that even if the parents live in different places, the majority parent moving could trigger the statute, and cause the other parent to get custody by meeting the best interests standard, instead of endangerment. This is rare, and even counter-intuitive. After all, if one parent lives in New York, and the other parent lives in Colorado with the children, that custodial parent moving to Dallas would not typically affect the other parent’s ability to exercise parenting, the cost of the children’s travel, etc.
The Court of Appeals recently reminded us, to the detriment of a custodial parent who lost custody, that moving a child does trigger this provision in the relocation statute, even when the other parent lives thousands of miles away, and the move did not harm his ability to exercise parenting time.
Moving Child to Korea is Major Move Which Triggers Statute
In Aguero,1In re: Marriage of Aguero (Colo.App. 2020) (Unpublished Decision). both parents were loving and competent, but the mother had been awarded majority time at divorce largely because of the stability of remaining in Colorado Springs where the child had lived since birth, while the father was military stationed in Hawaii.
After divorce, the mother remarried a military member, who then received orders to Korea (unlike most tours, this one was apparently accompanied, which means a longer tour where family members were authorized). The mother filed a “Verified Notice of Relocation” with the court, advising of the move to Korea due to her husband’s military transfer. The father then filed a motion to modify child custody, alleging it was in the child’s best interests to move to Hawaii with him, rather than relocating to Korea with the mother.
The same trial judge who awarded custody in the initial dissolution case again found that the child would thrive with either parent and that stability was again of paramount importance. However, this time that stability worked against the mother wanting to move the child. The court found that the
“significant changes in [mother]’s plans (social, geographic, housing, and economic) . . . in just a few months after the [permanent orders]” raised “at least some questions about the long term stability of the situation for [the child] if relocated to South Korea.”Aguero.2In re: Marriage of Aguero (Colo.App. 2020), ¶ 6 (Unpublished Decision).
Applying the best interests standard, the trial court awarded the father primary custody – an unusual move, but one contemplated by the statute. The mother appealed, arguing that her relocation should not have resulted in a change of custody, as it did not change the geographic ties between the child and father.
Relocation of Child Would Not Significantly Affect Overnights
The Court of Appeals agreed partially with the mother:
“True, mother’s proposed relocation would not significantly affect the actual number of overnights father spends with the child. And, arguably, mother’s proposed relocation would not significantly increase either the number of hours of flight time for the child or the physical distance between father and the child.”Aguero.3In re: Marriage of Aguero (Colo.App. 2020), ¶ 12 (Unpublished Decision).
But Moving a Child to Korea Disrupts Child
The court rejected the mother’s argument that moving a child to Korea was a mere “change of address” because, as the trial court found, the relocation would separate the child “from her emotional and practical support networks and the community that has been familiar to her throughout her life.” Aguero.4In re: Marriage of Aguero, ¶ 13 (Colo.App. 2020) (Unpublished Decision).
The court also found that the father has a say in where the child lives, even if moving the child would not impact his actual parenting time. ¶ 14. Additionally, the child had her own independent right to the court determining whether the move was in her best interests, regardless of the impact on the father’s time. ¶ 15.
The takeaway? Be careful with moving a child, even if the other parent is distant. While not every parent would propose an international relocation, the same rationale in Aguero would apply to moves within the U.S. as well. While a generation ago a primary parent could pretty much count on being permitted to move a child, these days a proposed child relocation will require a hearing and the court will truly scrutinize the proposed move vs. the other alternatives.
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