By: Jessica A. Saldin
It is not uncommon for people facing the end of a marriage or break-up of a relationship to contemplate moving out of state- either for a fresh start, to be nearer to family, or other reasons. We often have people facing a divorce or custody case asking if they would get in trouble if they leave the state of Colorado with the child(ren). In general, as long as there are no orders in place and they have not filed or been served with a divorce or custody case, there wouldn’t be any law preventing them from leaving Colorado. However, that is not us saying we recommend people go ahead and leave. If people leave the state with the children, and a case is then filed, the court has the authority to order the parent to bring the children right back to Colorado. Additionally, the parent that left with the children is often viewed in a negative light with the court. It can come across that the person left to try to “win” at the divorce or custody case and become the primary parent. However, if there are provable issues of domestic violence and evidence that the parent left with the children for safety reasons, the court is not supposed to make a negative inference from the person’s departure (though they can still order the parent to bring the children back).
The better course of action (actually recommended by the court in a published court decision) is for the parent to remain in Colorado, with the children, and ask the court’s permission to move as part of the case. In initial divorce and custody cases (before final custody orders are entered) a parent wanting to live out of the state of Colorado has special Constitutional protections. As per a Colorado child custody decision, the court actually has to take each party where he or she intends to live and allocate custody accordingly. Therefore, it is best to remain in Colorado until orders are entered by the court, rather than leaving prior to filing or being served and risk the court ordering you to bring the children back and starting off on the wrong foot with the court. However, this does not apply to situations where you have written agreement from the other party to take the children out of state (email, text message, signed agreement, etc.) or where you are moving but the children will stay in the state of Colorado. In those situations the court should not have an issue with you moving prior to orders being entered. Continue reading