In a Published Opinion, the Colorado Court of Appeals Reaffirmed that Parents’ Rights to Relocate Must be Considered in Any Parenting Plan if the Trial Court is Notified Before Final Orders.

In a recent published decision, a division of the Colorado Court of Appeals reaffirmed some very important parenting rights for relocating parents.

The Right to Relocate

As the Colorado Courts and the Supreme Court of the United States have held, the right to parent and the right to travel and relocate are fundamental rights.[1]  As such, when considering the best interest of the child in a custody proceeding, the sometimes-conflicting parental rights must nevertheless be weighed.  As the Court in Ciesluk held,

[t]hough consideration of the parents’ competing constitutional interests is important in relocation cases, the conflict is not simply between the parents’ needs and desires.  Rather, the issue in relocation cases is the extent to which the parents’ needs and desires are intertwined with the child’s best interests.  Thus, relocation disputes present courts with a unique challenge: to promote the best interests of the child while affording protection equally between a majority time parent’s right to travel and a minority time parent’s right to parent.”[2]

Spahmer v. Gullette[3]

In Spahmer, the Colorado Supreme Court explicitly held that

“in an initial determination to allocate parental responsibilities, a court has no statutory authority to order a parent to live in a specific location.  Rather, the court must accept the location in which each party intends to live, and allocate parental responsibilities accordingly in the best interests of the child.”[4]

As such,

“the trial court [must] fashion[] a parenting plan which [takes] into account the physical proximity of the parties to each other . . .. In failing to do this, [a] trial court abuse[s] its discretion and exceed[s] its statutory authority.”[5]

In re Marriage of Morgan and Morgan[6]

In the case of In re Morgan, the mother indicated to the trial court, that she was planning on relocating to California after her divorce was final.  As the Court of Appeals reaffirmed,

“[w]hen, as here, a parent indicates before permanent orders that she intends to move, a district court has no statutory authority to order her to live in a specific location . . . [Accordingly,] in the initial determination of parental responsibilities . . . a district court must accept the location in which each party intends to live, and allocate parental responsibilities, including parenting time accordingly.”[7]

Importantly, the court in In Re Morgan held that the trial court implicitly failed to meet this requirement when it ordered a logistically impractical parenting plan.[8]

But Didn’t the Mother Say She Wouldn’t Move?

In an interesting twist, the father argued that the mother in this case indicated she would not move to California if her children were ordered to remain in Colorado.  According to the father, then, the mother failed to provide the required unambiguous statement that she was relocating.  However, the Colorado Court of Appeals did not bite.  Instead, citing Ciesluk, the Court of Appeals held that the

“Mother’s admission that she would not abandon her children and move without them did not relieve the magistrate of his obligation to make the difficult decision to allocate parenting time with mother in California and father in Colorado.”[9]

Put simply, “[t]he magistrate has no authority . . . to issue an order that effectively coerces [the] mother into abandoning her plans to relocate to California.”[10]


As the courts have held, parenting and the ability to relocate are fundamental rights.  However, sometimes, you have to loudly advocate for those rights at trial or on appeal.  If you are going through a custody issue, feel free to contact my office.  I’d welcome the opportunity to hear about you issue and discuss how my firm can best help.


[1] See e.g., T.W. v. M.C. (In the Interest of Baby A), 363 P.3d 193, 201 (Colo. 2015) citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000) (“the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by this Court.”); In re Marriage of Ciesluk, 113 P.3d 135, 142 (Colo. 2005).

[2] 113 P.3d at 142.

[3] 113 P.3d 158 (Colo. 2005).

[4] 113 P.3d at 159 (internal quotations and citations omitted).

[5] 113 P.3d at 164 (internal quotations and citations omitted).

[6] 2018 COA 116 (Colo. App. August 9, 2018).

[7] 2018 COA 116, slip op. at 2 (emphasis added) (internal quotations and citations omitted)

[8] 2018 COA 116, slip op. at 3, citing Jacob A v. C.H.., 127 Cal Rptr. 3d 611, 617, 620 (Cal. Ct. App. 2011).

[9] 2018 COA 116, slip op. at 6.

[10] 2018 COA 116, slip op. at 7.

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