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Robbins: Relocating with kids after a divorce

You thought the trauma was at last all over.

Turns out, well maybe not so much. 

You figured that the dust had finally settled, the anger and resentment quelled, and the pieces settling slowly back in place.



And then …

Unexpectedly, things suddenly change.

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You reckoned that you could live, if not exactly in bliss, at least in peace with your ex. You could somehow share this town. You’d make it work. Then suddenly, he tells you he wants to move. And he wants to bring the kids along.

Your world is turned upside down. The first thought in your mind is, can he?

Well … it depends.

You might think that the parent awarded primary custody would have the advantage. Or that a parent who wants to leave, who may have greater economic opportunity elsewhere might have a leg up. But in both instances, you’d be wrong. In this state anyway, it is a level playing field without presumptions. The sole lens through which the court will assess the matter is the welfare of the children. Where will their interests best be served?

The above, of course, presumes that the parents cannot work this out themselves. Although the court retains jurisdiction over minor children until they turn 19, most times if a deal can be worked out between the exes, the court will sign off on what works best for them. Where, though, the War of the Roses wages, the court will look to a rather long list of criteria to help the court judge where is best to place the children — either here or there, with this parent or with that.

The exhaustive statutory factors, supported by equally exhaustive case law, may be found in Colorado Revised Statute Sections 14-10-124(1.5.)(a) and 14-10- 129(2)(c). The Section 14-10-124 (1.5) factors include all of the following:

  • The reasons why the party wants to relocate with the child;
    • The reasons why the opposing party is objecting to the proposed relocation;
    • The history and quality of each party’s relationship with the child since any previous parenting time order;
    • The educational opportunities for the child at the existing location and at the proposed new location;
    • The presence or absence of extended family at the existing location and at the proposed new location;
    • Any advantages of the children remaining with the primary caregiver;
    • The anticipated impact of the move on the child;
    • Whether the Court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
    • Any other relevant factors bearing on the best interests of the child.

Section 14-10-129(2)(c) provides that the Court must also consider the best interests of the child when determining parenting time, including the following factors:

  • The wishes of the child’s parents as to parenting time;
  • The wishes of the child if they are sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
  • The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
  • The child’s adjustment to his or her home, school, and community;
  • The mental and physical health of all individuals involved;
  • The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
  • Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
  • The physical proximity of the parties to each other as it relates to the practical considerations of parenting time; The ability of each party to place the needs of the child ahead of his or her own needs.

When all of this is balanced, after allowing each side to be heard, the court will perform its calculus and issue its decision.

Whenever there is a relocation of a parent, whether the children are also permitted to relocate or not, almost obligatorily the parenting schedule — and ofttimes child support — must be recalculated with the goal of the former being to preserve as much time for each parent as the new circumstances warrant.

As I often tell my family law clients, when you are married with children, even after divorce, in a sense you are bound to your soon-to-be ex for life and, owing to the ties of children, everyone must roll with the punches that each of your new futures may often unexpectedly portend.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.   


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