1. Removal Cases: A New Perspective on an Old Challenge Removal Decisions Post Spahmer and Cieslek

2. Learning Objectives After this session, participants will be able to: 1. Summarize the framework of decision making in removal cases; and 2. Examine and apply the factors to reach a good outcome for the client.

3. Spahmer v. Gulette., Colo. Sup. Ct. Case #03SC751, decided 6/6/05. The Court has no statutory authority to order a parent to live in a particular location. The Court only has statutory authority to determine decision making and parenting time for a minor child. The Court must accept each party’s choice of location, and must allocate parental responsibility in the child’s best interests, considering that choice. The Court has no statutory authority to order a parent to live in a particular location. The Court only has statutory authority to determine decision making and parenting time for a minor child. The Court must accept each party’s choice of location, and must allocate parental responsibility in the child’s best interests, considering that choice.

4. Spahmer (Cont.) The “Relocation Statute” (14-10-129(2) C.R.S.) should not be applied by the Court in all cases where one party wishes to relocate with a child or children. 14-10-129(2) C.R.S. only applies post decree. The “Relocation Statute” (14-10-129(2) C.R.S.) should not be applied by the Court in all cases where one party wishes to relocate with a child or children. 14-10-129(2) C.R.S. only applies post decree.

5. Spahmer (Cont.) In a pre-decree case, only the best interests factors must be applied by the Court under 14-10-124(1.5)(a). At the time of dissolution, the parties are on equal footing with respect to the allocation of parental responsibilities. Neither parent has a vested interest in their parenting time or decision making responsibilities until the Court has adopted the parties’ parenting plan or has entered permanent orders. Conversely, in post-decree cases, the parties are on unequal footing with respect to parental responsibilities. Additionally, the goals are different. In pre-decree cases, the Court is establishing new family units that will create new interdependencies between majority parenting time parent and child. Post-decree decisions should maintain that stability, if doing so would be in the child’s best interests. In a pre-decree case, only the best interests factors must be applied by the Court under 14-10-124(1.5)(a). At the time of dissolution, the parties are on equal footing with respect to the allocation of parental responsibilities. Neither parent has a vested interest in their parenting time or decision making responsibilities until the Court has adopted the parties’ parenting plan or has entered permanent orders. Conversely, in post-decree cases, the parties are on unequal footing with respect to parental responsibilities. Additionally, the goals are different. In pre-decree cases, the Court is establishing new family units that will create new interdependencies between majority parenting time parent and child. Post-decree decisions should maintain that stability, if doing so would be in the child’s best interests.

6. Spahmer (Cont.) (*Note: If the court enters 50/50 decision making and 50/50 parenting time plan, IRM Garst, 955 P.2d 1056 (Colo. App. 1998), and IRM McNamara, 962 P.2d 330 (Colo. App. 1998) may still apply. These cases state that cases with a 50/50 parenting plan are treated the same as an initial determination of parenting time, even post decree.) (*Note: If the court enters 50/50 decision making and 50/50 parenting time plan, IRM Garst, 955 P.2d 1056 (Colo. App. 1998), and IRM McNamara, 962 P.2d 330 (Colo. App. 1998) may still apply. These cases state that cases with a 50/50 parenting plan are treated the same as an initial determination of parenting time, even post decree.)

7. Spahmer (Cont.) The Court may enter an order to stabilize the situation or to require a parent to return with the child, pending permanent orders. The UCCJEA, in Section 14-13-210 C.R.S. gives the Court the power to order the child, with or without the parent, to return to this state pending the permanent orders hearing, and/or to protect the child and a party to the case. The Court may enter an order to stabilize the situation or to require a parent to return with the child, pending permanent orders. The UCCJEA, in Section 14-13-210 C.R.S. gives the Court the power to order the child, with or without the parent, to return to this state pending the permanent orders hearing, and/or to protect the child and a party to the case.

8. In re Marriage of Ciesluk, Colo. Sup. Ct. Case #04SC555, decided 6/6/05. In a post decree case, the Court should review all 21 factors in C.R.S. 14-10-124(1.5)(a) and C.R.S. 14-10-129(2), and must make findings regarding all factors based on the facts of that case. Each factor must be individually considered by the Court, and weighted based on the facts of each case. In a post decree case, the Court should review all 21 factors in C.R.S. 14-10-124(1.5)(a) and C.R.S. 14-10-129(2), and must make findings regarding all factors based on the facts of that case. Each factor must be individually considered by the Court, and weighted based on the facts of each case.

9. Ciesluk (Cont.) The presumption from In Re Marriage of Francis is no longer good law. In Francis, there was a presumption that the majority parenting time parent should be allowed to relocate, if he/she could show a sensible reason for the move. Now, after the changes to C.R.S. 14-10-129(2), there can be no presumptions made under C.R.S. 14-10-124(1.5)(a) and C.R.S. 14-10-129(2) in a post decree case. The Court may neither presume that the child should remain with the parent with whom the child resides the majority of the time, nor may the Court presume it is in the child’s best interests to remain in a place where the child may have access to both parents. However, the benefit to the child in remaining with the majority parenting time parent is one of the 21 factors that the Court must consider. The presumption from In Re Marriage of Francis is no longer good law. In Francis, there was a presumption that the majority parenting time parent should be allowed to relocate, if he/she could show a sensible reason for the move. Now, after the changes to C.R.S. 14-10-129(2), there can be no presumptions made under C.R.S. 14-10-124(1.5)(a) and C.R.S. 14-10-129(2) in a post decree case. The Court may neither presume that the child should remain with the parent with whom the child resides the majority of the time, nor may the Court presume it is in the child’s best interests to remain in a place where the child may have access to both parents. However, the benefit to the child in remaining with the majority parenting time parent is one of the 21 factors that the Court must consider.

10. Relocation Factors to Apply §14-10-124 and §14-10-129 C.R.S. Best Interests factors to consider: Physical proximity of parties as it relates to parenting time Child’s educational opportunities in each place Parent’s wish for parenting time Whether there has been Child abuse/ neglect by either party Child’s extended family in each place Mature Child’s independent wish for parenting time Whether there has been spousal abuse by either party Any advantages to staying with primary caregiver Interaction/ interrelation-ship between child and his/her parents, siblings and significant others Ability of party to put child’s needs ahead of his/her own needs Anticipated impact of the move on the child Child’s adjustment to home, school and community. Post Decree factors to consider: Can a reasonable parenting time schedule be fashioned? Mental/physical health of all individuals involved Reason why party wishes to relocate Any other Relevant Factor Ability of each party to encourage child’s contact with the other party(s) Reason why other party objects to relocation Endangerment of the child with either party Past pattern of involvement of parties with child re: values, time commitment and mutual support Post decree history/quality of each party’s relationship with the child