Relocation with Minor Children

After divorce, it sometimes becomes necessary for a parent to relocate to a new geographic location. Sometimes the parent must relocate for financial reasons, other times for personal reasons such as to be closer to extended family. If the relocating parent wishes to relocate with the children, and the relocation will result in a substantial change in the geographic relationship between the children and the non-relocating parent, such as would normally occur with an out-of-state move, the non-relocating parent may object to the relocation. While the court may not forbid a competent adult from living wherever he or she wishes, the court may determine whether the relocating parent may bring the children with him or her to the new location as the “majority time” parent.

Contested post-divorce relocation cases are among the most legally and emotionally difficult cases to litigate. A primary reason for this is that the parents already have an established parenting plan in place that governs their relationship with, and responsibilities for, the children such as parenting time and decision-making. A substantial geographic relocation by one parent with the children upsets the “balance” that has already been established regarding parental rights and responsibilities.

Colorado law has very specific requirements that must be met for a parent to be permitted to relocate to a substantially different geographic location with the children. Under Colorado law, the parent wishing to relocate with the children must, as soon as practicable, provide written notice to the other parent of his or her intent to relocate. The relocating parent must include in the written notice the reason for the relocation and the proposed new location. The relocating parent must also provide the other parent with a new proposed parenting plan that addresses the relocation.

Once these requirements have been met, if the non-relocating parent objects to the relocation, the issue is given priority on the court’s docket. The court is required to consider certain specific factors in determining whether to permit the children to relocate with the relocating parent. Among these factors are:

  • The reason for the relocation;
  • The reason for the objection to the relocation;
  • The historic relationship of each party with the child;
  • The relative educational opportunities for the child in the two possible locations;
  • The relative access the child will have to extended family at the two possible locations;
  • The advantage to the child of remaining with the “primary caregiver;”
  • The impact of the move on the child;
  • Whether it is possible to fashion a reasonable parenting time schedule if the parent is permitted to relocate with child;
  • The wishes of the child if the child is mature enough to express his or her preference;
  • The child’s adjustment to his or her home, school and community;
  • The mental and physical health of all involved;
  • Whether the past pattern of involvement of the parents with the child reflects a system of values, time commitment, and mutual support;
  • Whether one of the parents has been a perpetrator of child abuse or neglect;
  • Whether one of the parents has been a perpetrator of domestic violence;
  • The ability of each party to place the needs of the child ahead of his or her own needs; and,
  • Any other factors the court considers relevant.

Ultimately, the court must determine whether it is in the child’s “best interest” to relocate with the parent. The relocating parent must convince the court that the relocation and proposed new parenting plan is in the best interest of the child. The non-relocating parent must convince the court that it is in the child’s best interest to remain with him or her. If the non-relocating parent does not object to the relocation with the children, but only objects to the relocating parent’s proposed parenting plan, he or she must convince the court that an alternate parenting plan would be in the best interest of the child.

If the court permits the relocation with the children, it must enter a new long-distance parenting plan. Long-distance parenting plans often include provisions whereby the children are with one parent during the majority of the school year and the other parent during the majority of the summer and other school breaks. Holidays such as Thanksgiving and Christmas are usually alternated due to the time and difficulty of long-distance travel. Often, the non-relocating parent is afforded monthly visits with the children. Whether the parents share the costs and burden of travel, or whether the cost and burden of travel falls largely on one or the other parent, often depends on the age of the children and the financial resources of the parents. For example, the majority time parent may need to travel with the children while they are young, although the cost of travel may be borne by one party or both depending on the circumstances. Decision-making authority should also be addressed in the long-distance parenting plan and can include such things as the authority of the parent with whom the children are with at any given time to make minor day-to-day decisions, how the parties will communicate regarding major decisions (e.g., text, phone, Skype, or e-mail), time limits for responses, etc.

If the court denies the relocation with the children, it must enter two alternative parenting plans – one that would apply if the relocating parent actually relocates, and another that would apply if the relocating parent ultimately decides not to relocate (which could be merely a confirmation of the existing parenting plan).

Relocation to a substantially different geographic location is an extremely important event that can have considerable impact on the relationship between the parents and children. If a parent wishes to relocate, Colorado law mandates that certain requirements be met for the relocating parent to relocate with the children. Ultimately, the court must decide what is in the child’s “best interest.” While this determination is never an easy one to make, Colorado judges are tasked with weighing all of the information at their disposal and arriving at what is hopefully the best solution for the children under the circumstances.