Removal or "move away" is the situation where the custodial or primary residential parent seeks to permanently relocate out of state, or to a location a significant distance away, and take the children with them. The parent left behind is faced with the prospect of trying to maintain a relationship with the children over a distance, if at all. If the children are allowed to move, they lose the regular care and companionship of the parent, friends and extended family remaining behind.
The parent faced with the prospect of being left behind has several options, including: (1) Do nothing and let the children move away; (2) move along with the moving parent to the children's new location; or (3) ask the court to intervene and prevent the children from being removed. None of the options are without potential serious, long-term consequences: Option No. 3 is complex and the assistance of a lawyer is advisable.
Preventing the move away may require litigation. The type of litigation will be depend upon whether you and the moving parent are married, divorced or never married. If you are married, filing for divorce automatically creates an injunction (restraining order) against removal of the children from Colorado without the other parent's agreement or court order (effective 8/15/10 the injunction against removal also automatically applies in non-married custody cases). If you were never married to the other parent, filing a custody (parental responsibility) action and requesting a temporary restraining order against removal of the children may put the move on hold (injunction is automatic effective 8/15/10). If you and the other parent are divorced, you may be able to file a motion in the divorce court to prevent the removal of the children and ask that the parenting or custody orders be modified if the other parent goes through with the move. Although the legal approach to preventing the removal of the children differs based upon the current relationship of the parents, each approach will involve or result in a custody dispute over the children.
The Colorado legislature has acknowledged in the opening provisions of the Uniform Dissolution of Marriage Act: "that, in most cases, it is in the best interests of the children of the marriage to have a relationship with both parents and that, in most cases, it is the parents' right to have a relationship with their children." Colorado Revised Statutes (CRS), Title 14, Article 10, Section 104.5.
When a parent seeks to relocate with the children to a degree that the geographical ties with the other parent are broken, and there is an existing custody or parenting order, the statute (CRS 14-10-129) mandates that the court consider not only the same factors in an initial divorce or custody action, but also:
(I) The reasons why the party wishes to relocate with the child;
(II) The reasons why the opposing party is objecting to the proposed relocation;
(III) The history and quality of each party's relationship with the child since any previous parenting time order;
(IV) The educational opportunities for the child at the existing location and at the proposed new location;
(V) The presence or absence of extended family at the existing location and at the proposed new location;
(VI) Any advantages of the child remaining with the primary caregiver;
(VII) The anticipated impact of the move on the child;
(VIII) Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
(IX) Any other relevant factors bearing on the best interests of the child.
In applying the statute, the Colorado Supreme Court has differentiated between whether or not there is an existing parenting or custody order in place at the time the custodial or primary residential parent requests to move away with the children. If there is an existing order, then the statute applies. Marriage of Ciesluk, 113 P.3d 135 (2005). If there is no prior custody or parental responsibility order, then the court is required to presume the parent will move and determine, on that basis, the long-distance parenting arrangements. Spahmer v. Gullette, 113 P.3d 158 (2005).
The information provided above is general in nature, is not intended as legal advise for your particular situation and should not be relied upon without first consulting with legal counsel. The firm's attorneys provide legal representation in move away or relocation matters within the Denver, Colorado, metropolitan area and will tailor services to your particular needs and unique circumstances.