When parents originally file a Dissolution of Marriage, Allocation of Parental Responsibility, or Paternity action they each have the choice to live or move to a location of their choosing. The Court must accept the choice of their location, and allocate the parenting time and decision making in the children’s best interests pursuant to C.R.S. §14-10-124, taking into consideration the parents’ geographical locations. Spahmer v. Gulette, 113 P.3d 158 (Colo. 2005).
However, when a parenting plan has been Ordered, and a parent subsequently decides to relocate to a geographical location that makes the previous parenting plan impossible to maintain, then a post-decree modification is necessary. For a post-decree modification regarding relocation, the Court looks not only to the children’s best interests, but also looks at additional factors pursuant to C.R.S. §14-10-129 to decide if a parent can relocate with the children. In re Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005). The Court hears evidence regarding why a parent is relocating, why a parent objects to the relocation, what community advantages or disadvantages result from relocation, the past history of parenting time, and the impact a relocation will have on the children.
The relocating parent can identify, grab a hold of, and then justify a move for any seemingly legitimate reason: enjoy a lower cost of living, increase of income, leave an abusive situation, follow a new spouse, enter better schools, or move closer to family. But, even with one or all of those factors, the Court will have to decide if the reasoning for relocation outweighs the children maintaining a close, consistent, and frequent parenting time with the other parent. It sometimes appears that the relocating parent is essentially placing the children and the other parent’s relationship at the bottom of the list of priorities. If you look at the best interests statute, one of the factors is “the ability of the parents to share the love, affection, and contact between the children and the other parent.” C.R.S. §14-10-124(1.5(a)(VI).
When a parent relocates the reality is that the further parents live apart the harder it is to create and live up to a schedule that is flexible, frequent, and affordable. When children are younger, travel considerations are difficult regarding the duration of travel, or ability to travel unaccompanied. When children are older, scheduling considerations are difficult regarding school, extracurricular activities, and friends. The Court considers these difficulties and also the advantages of a relocation, and sometimes the Court asks: If the Court Orders the children to remain in Colorado, will the relocating parent still relocate?
The answer to this question is a catch-22 and it may sound irrelevant and prejudicial as the relocating party has already committed to relocating and is requesting an Order from the Court. But, either answer could be “the wrong” answer. If a parent says he/she will still relocate without the children, then the parents appears not able to place the children’s interest ahead of his/her own and therefore the children should be relocate with the parent. If a parent says he/she will not relocate without the children, then the Court can grasp the easy way out and simply Order the children to remain, assuming the parent will as well.
In the end, either the Court allows the children to relocate or denies the children’s relocation and Orders a new parenting plan with the children traveling between the parents. Often it is the children who can lose.