Once your divorce is final, parental rights have been established by Court Order for both parents. If later on, one parent decides to relocate, there will have to be a change in parenting time and possibly decision making thereby affecting parental rights. The Colorado Courts consider these vested parental rights along with the best interests of the child in determining how the impending relocation of one parent will effect the child's living arrangements and the parenting time of both parents.

Scenario One: The primary parent (the parent with the majority of the parenting time) is moving to another state.

Normally if you wanted to change the primary parent you would have to prove a physical danger to the child or danger to the child's emotional development. However, the one exception is during a relocation. Although it is the primary parent that is relocating, it is not a given that the child's primary residence will remain with that parent. The court will look at the situation using a best interest of the child standard to decide if the child's main residence should remain with the parent that is moving or if primary residence should switch to the parent who is remaining in the state of Colorado. The Court will re-look at the same factors they used in originally deciding parenting time and they will also look at an additional 9 factors in making their decision. The additional 9 factors are as follows:

1. The reason why the party wishes to relocate with the child;
2. The reason why the opposing party objects to the proposed relocation;
3. The history and quality of each party's relationship with the child since the previous parenting time order;
4. Education opportunities for the child at the current and proposed location
5. The presence or absence of extended family at each location;
6. Whether a party as been a perpetrator of child abuse, when such abuse occurred and other factors surrounding the abuse;
7. The advantage of the child's remaining with the primary caregiver;
7. Impact of the move on the child;
8. If a reasonable parenting time schedule can be fashioned;

It is important to note that Colorado case law has established that there is no presumption in favor of the primary parent. Both parents have an equal burden to prove what is in the best interests of the child in a relocation proceeding.

Scenario Two: The parties have equal parenting time and one party is moving out of state

In the case of joint parenting the standard remains the same. The Court will look at what is in the best interests of the child using the same factors as stated above. The only difference is that if both parties have equal parenting time the stability of the child could weigh equally between parents and the question of best interests might weigh towards staying with the parent in Colorado more frequently. However, the evidence is unique to each case and I would not venture to say how a Court might rule without knowing the specific circumstances of any one case.

Scenario Three: The Non-Primary Parent is leaving the state

If the parent leaving the state has less parenting time than the parent remaining in the state then the primary parent would remain the same and the child's primary residence would remain in Colorado. The only change the Court would be looking at would be a change to the parenting plan to account for the geographic distance between the parties.

Typically, the Colorado Court will not consider a change to parenting time within the two years following a change. This rule does not apply to relocation. The Court will consider a relocation at any time and it will be given priority on the Court's docket.

I get many questions from people who want to immediately relocate when their divorce is final. People are afraid that they may have to give up their hopes of being the parent with the majority of the time if they choose to relocate.

As it turns out there is a different standard for a relocation when it is done as part of the divorce process than there is if you are going back to court after a divorce to get permission to relocate.

There are 11 factors that the Court looks at to determine what is in the best interest of the child regarding parenting time. One of those factors is " The physical proximity of the parties to each other as this relates to the practical considerations of parenting time".

In 2005 the Colorado Supreme Court ruled on this issue in the case of Spahmer v. Gullette, 113 P.3d 158 (Colo. 2005). The Court found that the trial court must start from the reality that the parents are going to live in different states if that is what is presented in the pleadings. Then they must fashion a parenting plan that takes the different locations as a given in determining a parenting plan that is in the best interest of the child.

So the answer is that you can choose to move to another state as part of your divorce process. Given that decision, the Court will look at what is in the best interests of the child in determining parenting time. All of the other normal parenting time factors will then come into play but the proximity issue will be a given. In other words, the parent who normally would have the majority of the parenting time will not be penalized for choosing to move out of state. Both parents will start on equal ground with respect to determining parental responsibilities. See Spahmer at 163.

If you go back to court to modify parenting time due to a request for relocation the Court will apply a more difficult standard. The statute on relocation lists an additional 9 factors that must be looked at beyond the 11 factors dictated by the parenting time statute. The relocation statute prohibits majority time parents from modifying the prior parenting time order unless certain conditions are met. The statute then lists the additional 9 factors the court must consider in hearing a post divorce relocation request. The reason for the higher standard is that now, post divorce, the parents are not on equal ground with respect to parental responsibility, one has already been named the majority time parent and a court has already rendered judgment as to issues such as parenting time and decision making. So each parent has vested rights and the relocation standard is designed to protect those vested rights. See Spahmer at 163.

The moral of the story: You are better off deciding to leave the state during your divorce process and having that decision be part of your divorce proceeding than waiting and requesting relocation after your divorce process is complete.