Part 1 of this posting, from June 2014, focused on the basics of relocation with children in a Colorado custody case, including analysis(es) related to situations which might arise either prior to a case being filed, or while a case is pending, as well as pre-final orders requests to move from Colorado with children, covered under a court case called Spahmer. Though various portions of statute and case law deal with the pre-final orders aspects of custody and relocation, there is a completely different legal standard for seeking permission to leave Colorado with the children after final orders have entered in a divorce or custody case.
Once final, or “permanent” orders have entered, there are two scenarios in which relocation with children could become an issue. Prior to getting into an analysis of the law related to properly requesting a change in location, I will briefly address a situation we, as Denver custody attorneys, see from time to time. Though not common, there are instances in which one party to a custody case decides to leave Colorado, or the Denver metropolitan area, with the children and without seeking permission of the court or the other party. If there are parenting time orders in place, the expectation of any court is that they will be followed. If one party decides to just leave Denver, and abscond with the children without permission, the law affords various remedies to the other party. Of course any family law attorney should advise his or her clients that just leaving with the children can have tragic legal consequences.
When on party leave Colorado with the children such that he denies the other party his or her visitation, he or she becomes subject to relief under C.R.S. 14-10-129.5, which relates to enforcement of parenting time orders. Most certainly, he or she will ultimately lose actual physical custody of the children for leaving the state without permission. He or she will likely also be subject to contempt of court proceedings, which can include jail. C.R.S. 14-10-129.5 also contains contempt like provisions. Beyond these avenues for relief, the person wrongly leaving, when caught, can expect to have is or her visitation taken away and will likely have to endure supervised visitation for quite some time until he or she proves they are no longer a flight risk. The arm of the law within the United States is long. Should one elect to flee to another state, once found, it is likely the other side with take steps under the Uniform Child Abduction Prevention Act to get the children returned to Colorado. Finally, violating Colorado custody orders and fleeing the state, or area, with the children is technically a felony and can lead to serious criminal consequences, including potentially prison. Colorado family law courts do not like to see their orders regarding visitation violated and the penalties can be harsh. Of course, the “relocation”, per se, discussed in this paragraph is the exception and the wrong way to go about things.
When a party determines that he or she wishes to move from Colorado, with the children, the proper route to go is to seek relief from the court pursuant to C.R.S. 14-10-129, the parenting time modification statute. C.R.S. 14-10-129(2)(c) specifically addresses the issues centered around a parent’s desire to relocate with the children, including procedures, legal standards in terms of what the court is looking for in terms of information to make a determination, etc. Relocation cases are generally also viewed under a case called Ciesluk, 113 P.3d 135 (Colo. 2005), in which the court determined that a court should look at the best interest factors set forth in C.R.S. 14-10-124, as well as those enumerated in (2)(c). Unlike a Spahmer analysis, the reason for the move under Ciesluk matters more significantly.