THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
A common issue involved with a child custody arrangement is one parent wishing to relocate. A spouse may wish to move farther away to have a fresh start after the breakup, or may get relocated for work long after the divorce. Whatever the reason, specific protocols must be met to legally relocate with a minor child in Colorado. If you are dealing with a child move-away or relocation matter, consult with a child relocation attorney right away for assistance.
Can a Parent Relocate With a Child During or After Divorce?
Yes, a parent can move away or relocate with a child during or after a divorce, but only if the parent meets certain requirements. There are legal obligations that must be met before the parent can move. If the divorce has not yet been finalized and the couple does not have a custody agreement, the moving parent will need permission from the other parent or the court to relocate a child (even temporarily). In general, it is difficult to get this permission from the courts during a pending divorce.
If the couple is divorced and a parent with primary or joint custody wishes to move someplace that will substantially change his or her geographic location, the parent must also obtain permission from the other parent or a judge. The proper steps for relocating are:
- The moving party must provide written notice of the intent to move as soon as practicable.
- The party must write down the location where he or she wishes to move and the reason for the relocation.
- The party must include a new proposed parenting that takes the new location into account.
- If the other parent does not permit the move, the moving party can file a Motion to Relocate.
- Both parents will then have to speak before a judge on the issue during a relocation trial.
- A judge will review the facts of the case and determine whether the relocation serves the child’s best interests.
If the case goes to court in Colorado, the courts will generally make it a priority. Under Colorado law, a court should schedule a relocation hearing within 35 days of an opposing parent filing an objection. When determining a relocation matter, a judge will look at factors such as the current custody arrangement and the needs and desires of the child. If a judge grants the relocation request, it may also give a new custody order.
What if Your Ex Relocated Without Your Permission?
Without permission from the other spouse or the courts, it is against the law for a parent to relocate with a child during or after a divorce. It does not matter if the moving parent has primary or sole custody; the parent must still go through the proper outlets to receive permission to move, especially if the proposed relocation is out of state.
If your ex-spouse moved away with your child without your permission or an order from the court, take action immediately. If you believe your child is in imminent danger, call the police. This is called parental kidnapping and it is a crime in all 50 states. Then, go to the family court that created your custody order and file for an emergency or expedited relocation hearing. The courts will have resources to help you hold your ex-spouse accountable. They may also alter a custody agreement if your ex is no longer serving the best interests of your child.
Can You Modify Custody Due to Relocation?
If your ex-spouse plans on moving to a different geographical area – someplace farther than just the next town over – you can request a custody order modification from a judge. A judge may modify your custody arrangement if your ex-spouse plans to place a significant amount of distance between your households. As is the case with all custody matters, a judge will rule according to the best interests of the child. For legal assistance relocating or stopping a child relocation in Colorado, contact a family law attorney today.
The filing of every divorce case in Colorado creates an automatic temporary injunction. This is a legal order that prohibits both parties involved in the divorce or legal separation from certain activities, mainly relating to the destruction or use of marital property. Understanding how a temporary injunction works can help you avoid doing something that could get you into legal trouble. It can also help you protect your rights if your ex-spouse violates the injunction.
What Is a Temporary Injunction?
A temporary injunction, also known as a preliminary injunction, serves to protect the rights of both parties during a dissolution of marriage. The state law regarding automatic temporary injunctions is Colorado Revised Statute Section 14-10-107(b)(I). It states that upon the commencement of a divorce or legal separation proceeding by one of the parties, a temporary injunction will go into effect against both parties until the final divorce decree is entered or the petition is dismissed.
Temporary injunctions put many restraints on both parties involved in a divorce proceeding. Neither party may engage in any of the following activities while a temporary injunction is in place:
- Disposing of marital property in any way without the consent of the other party or a court order. This includes concealing, transferring, encumbering or destroying marital property.
- Molesting or disturbing the peace of the other party. This can refer to many actions meant to irritate or injure the other party.
- Relocating a minor child or children of the parties to a different state without the consent of the other parent or a court order.
- Canceling, modifying or allowing a lapse in a shared insurance policy, such as health insurance or automobile insurance, without giving the spouse at least 14 days’ advance notice and obtaining the spouse’s consent or a court order.
The terms of the temporary injunction must be printed upon the summons. There are some exceptions to a temporary injunction. For example, you may be allowed to dispose of marital property without your ex-spouse’s consent if doing so is a natural result of your usual course of business or for the necessities of life. If you are not sure whether you have the legal right to dispose of marital property, consult with an attorney before doing so.
Understanding Temporary Injunctions
In simple terms, a temporary injunction in a divorce case in Colorado prohibits both parties from engaging in activities that would hurt the other spouse physically, emotionally or financially. This law is in place due to the emotional nature of a divorce or legal separation. Its purpose is to prevent either party from doing something out of spite to harm the other party, such as destroying property to prevent the other spouse from receiving it in a divorce case.
It is important to note that temporary injunctions only apply to marital property, not your separate property. You can do what you wish to property that is classified as separate, such as property that you brought into the marriage (and did not commingle with your spouse’s property) or gifts or inheritance given only to you during your marriage. Verify that a piece of property is your separate property before acting. The law generally holds that you can also do what you want with your will, estate plan and separate credit cards, as long as it does not impact marital property.
If you believe your spouse violated a temporary injunction in your divorce or legal separation case, speak to an attorney right away. You have several options available, such as filing a motion for contempt of court or communicating directly with your spouse to resolve the violation. An attorney can help you with all of the aspects related to a temporary injunction while protecting your legal rights during a divorce case. Learn more today by contacting the Fort Collins divorce lawyers at the Law Office of Stephen Vertucci.
An adopted child is viewed in the same way as a biological child by the divorce courts in Colorado. This means if you and your spouse get divorced with an adopted child, matters such as child custody and child support will be determined in much the same way as if the child were biological and born of the marriage. There may be some special considerations, however, related to the adoption. For assistance with a complicated child custody matter, contact a Fort Collins divorce lawyer.
Contested vs. Uncontested Divorce
You and your spouse will have the opportunity to reach a settlement agreement that determines issues such as child custody, visitation and child support on your own, without court intervention. This is what is known as an uncontested divorce case. It may be helpful to use a form of alternative dispute resolution, such as mediation or arbitration, to reach a settlement agreement with your spouse and avoid a trial. If you cannot reach a settlement regarding custody of an adopted child or another key issue, your divorce case will have to go to court. This means you would have a contested divorce.
Colorado Child Custody Laws
In Colorado, the family courts will look at many different things to determine child custody if your divorce case goes to trial. For the most part, the courts will want the adopted child to remain in contact with both parents. Adoptive parents have a duty to care for and provide for the child as they would with children born of the marriage. However, the main factor is the adopted child’s best interests.
Custody of an adopted child is based on factors such as:
- The wishes of both parents and the child
- The child’s relationship to either parent
- The child’s connection to his or her community and surroundings
- The child’s safety and wellbeing
- Any special circumstances or special needs the child has
- Each parent’s living situation
- Family history
These are the same factors that are considered when determining custody of a biological child in a divorce case in Colorado. Adopted children also have the right to receive financial support from both parents, meaning the courts may require one spouse (typically the noncustodial parent) to pay the other child support.
Special Considerations for Adopted Children
If the child is one parent’s biological child and the other parent’s adopted child, the courts will value both parental relationships in the same way. The parent with the biological relationship to the child will not receive preference based on this. Each parent will be viewed as the child’s legal parent and treated the same way.
One special issue that may arise in a divorce case involving an adopted child is an adoption subsidy payment. Subsidy payments are given to the child in an amount that may be several hundred dollars each month. If the parents get divorced, the adopted child will continue to receive this subsidy payment until he or she reaches the age of majority.
In general, an adoption subsidy is viewed as the child’s property and does not change how much the noncustodial parent must pay in child support. A portion of the subsidy, however, may be given to the other parent based on his or her share of parenting time. Like child custody and other divorce matters, a couple always has the ability to determine child support on their own before the matter goes to a judge.
What If the Adoption Is Still Pending?
If you and your spouse split up while an adoption is still pending, your divorce may affect the adoption. If the adoptive mother is making the final decision, for instance, she may not give her consent to the adoption after learning of your divorce. In addition, the court in charge of the adoption will consider how the divorce might affect the child. If the birth mother still consents and one parent wishes to proceed with the adoption, there is a chance that it will still go through. These are complicated cases, however, that deserve legal attention. Contact a divorce attorney in Colorado today for more information.
Posted in Child Relocation on April 15, 2019
Developing a custody agreement is often a long and stressful process, and the divorced parent’s lives can change in drastic ways after a custody agreement has already been established. Fortunately, the court system allows divorced parents to revisit and amend an existing custody agreement in light of changing life circumstances. For example, if your employer offers you a fantastic promotion that requires relocating to a different state, you may need to weigh the potential financial benefits against the time you spend with your kids.
If you are considering relocating, speak to a Fort Collins child custody attorney today for more information about the legal process.
Every parent must ultimately make these decisions on an individual basis. However, if you reach such a decision and need to amend your custody agreement, you must take time to reach out to the other parent. These discussions may be difficult, but things may be even more difficult when it comes to telling a noncustodial parent you intend to move.
Physical Custody and Moving
When one parent has primary physical custody or majority custody over a child with an ex-spouse, the custodial parent has the right to make major decisions on behalf of the child. One such decision could be moving to a new state. If you have primary physical custody over your children and intend to move, you must inform the noncustodial parent of your decision. Some child custody agreements may even have strict stipulations as to time limits for giving the noncustodial parent notice about these things.
Violating your custody agreement could have a negative impact on your custody rights and your relationship with your ex and your children, so be sure to carefully review your custody agreement and follow all rules pertaining to major decisions.
If a custodial parent intends to move, he or she must file a written notice to the noncustodial parent. This notice must include the date and time of the intended move, the reason for relocation, and the address of the custodial parent’s new residence. The noncustodial parent usually has the option to object to this move, and the parents may need to return to court for a ruling.
Most states have specific rules when it comes to providing a noncustodial parent with notice of a move, but some child custody agreements will specify these matters on an individual basis. For example, a divorcing couple may include mutually agreed upon grounds for relocation in their custody agreement. Always refer to the child custody agreement before making any major decisions about relocating, and consult with an attorney before proceeding.
Relocation With a Child Custody Agreement
Every state has unique laws for handling relocation-related issues in child custody agreements, but typically the parents must provide the court with a sound list of reasons supporting or condemning the proposed move. The noncustodial parent may seek to prevent the custodial parent from moving with the children or adjusting the custody agreement to secure primary physical custody.
As with all matters related to child custody, the court has a legal duty to rule in favor of the best interests of the children. The judge hearing the relocation matter will assess the custodial parent’s proposed reasons for relocating, such as taking a lucrative new job or moving closer to extended family, and then weigh them against the noncustodial parent’s grounds for refusing the relocation request. The court has a responsibility to assess the potential positive and negative effects of a relocation on a couple’s children.
The court may determine that the custodial parent taking a promotion in a new state and adjusting primary custody to the noncustodial parent remaining in the area would be a net benefit to the couple’s children. Such an arrangement could mean more financial support for the children’s futures with minimal disruption in their day-to-day routines.
If you notify your noncustodial ex that you intend to move, prepare for the possibility of amending your custody agreement and be sure to follow the applicable time limits and procedure for notifying your ex. For more information on child relocation and custody arraignments, contact a divorce specialist in Fort Collins.
The most common form of child abduction is parental kidnapping. Parental kidnapping occurs when a non-custodial parent takes children without the custodial parent’s knowledge or consent. Colorado laws define taking a child as kidnapping, even if the abductor is a parent, if that parent does not have custody or parenting time privileges. If a non-custodial parent unlawfully takes a child, the other parent has available options for the child’s safe return.
Examples of Parental Kidnapping in Colorado
A non-custodial parent in a situation with a court-ordered custody agreement can never be too careful with what he or she does with children. Surprising children at school, for example, might not be a good idea if a parenting time order expressly forbids unsupervised parental visits. Picking children up from school, church, or elsewhere and taking them somewhere – even for ice cream down the road – without the legal right or the other parent’s consent, is parental kidnapping.
One of the most common examples of family abduction is removing a child from the state in violation of a custody order. Some families may live in one state, but have a child custody order from another state. This can present issues, as state officials can only enforce orders from within their state. If you moved to Colorado with a custody agreement from a different state, get a Colorado court order as soon as possible. That way, law enforcement will have the right to recover children and return them to the custodial parent. Otherwise, your ex-spouse may be able to escape liability because of a loophole in the system.
In Colorado, a parent with primary custody of minor children has the right to move out of state with them, without the other parent’s consent. This does not constitute parental kidnapping. However, the non-custodial parent has the right to petition the court to prohibit the removal of children from the state. The courts will hold a hearing to decide whether it should prevent the move or permit it to happen. Blocking the move may occur if the courts believe it is in the children’s best interests.
Colorado is unique in that most states do the opposite: the custodial parent must petition the courts to move out of the state. Note that removing children from the state or taking them elsewhere is not parental kidnapping if the courts have not issued a custody order. If the parents never went to court and received an official custody agreement, it is not kidnapping for one parent to take the children – even without the other parent’s consent or knowledge. Both parents will retain equal responsibilities and rights, until the court says differently with an official custody order.
What to Do About Parental Kidnapping
Finding out your ex-spouse breached a custody order and took physical control of your children without consent can be frightening. If you have already filed for allocation of parental rights and won, then your ex-spouse is in violation of the custody agreement and may be guilty of parental kidnapping. Your first step should be to call the police, especially if you believe your children to be in danger. The other parent could be guilty of 2nd-degree kidnapping, or wrongfully retaining a child under 18 years old. This is a class 5 felony.
Colorado law enforcement will have the power to take steps to retrieve your child as long as you have a state-issued court order granting you custody of the children. If your ex-spouse receives a conviction for parental kidnapping, he or she could face up to three years in prison and $100,000 in fines. The police may ask if you want to press charges, and the city may decide to prosecute regardless of what you say. Once you call the police, the matter is generally out of your hands.
Posted in Child Relocation on September 5, 2018
International travel with children has grown increasingly common over the past several years, and so have the number of marriages between parents of varying national backgrounds. Traveling with children often entails some stress, but this increases significantly when international travel is concerned. Additionally, a divorced parent may worry about an ex-spouse abducting the couple’s children and taking them out of the country.
If you plan to travel internationally with your children, or if your ex-spouse may take the children out of the country for vacation or to visit relatives in another country, then your custody agreement should be your first resource for determining the proper procedures for these events.
Custody Agreements and Travel
When couples with children divorce, the custody agreement will typically outline each parent’s rights and obligations, and this should include domestic and international travel. For example, if one parent has family in Canada, the custody agreement should have clear instructions for visits outside the country, each parent’s custodial rights, and any adjustments that will take place to compensate the other parent for the trip, if applicable.
One element of the agreement could state that if the children spend the school year with their mother and the summer with their father and the father has family or property in another country, he may take the children out of the country for summer vacation since it would not interfere with their schooling. There would likely be specific requirements in place for phone calls, correspondence, emergencies, and other possible issues. If for some reason the father is unable to take the kids for the summer one year, he may ask for an adjustment to the custody agreement to compensate for lost time.
If you plan to take your children out of the country, it is always in everyone’s best interest to notify your ex well in advance. Make plans and be sure that your ex understands the details of your travel itinerary, how he or she can reach you and the kids, and what to do in case of emergency. It’s best to obtain written consent from your ex for any trip outside of the U.S.
International Child Abduction
If one parent fails or neglects to obtain consent from the other parent and takes the couple’s children out of the country, the traveling parent may become the subject of an international child abduction case and face significant legal penalties. Depending on the other country’s immigration and child custody policies for international travelers, it’s possible for embassies and even government officials to participate in such a case.
The U.S. State Department advises parents who intend to travel internationally with their children to obtain letters of consent from ex-spouses staying behind in the U.S. Have your divorce attorney retain a copy of this letter just in case, and file it with the U.S. embassy in your destination country. It’s also wise to secure passports for your children, even if your destination country does not require them for minors. Having as much documentation as possible will help you sort out any confusion and protect against an unwarranted kidnapping charge.
If your ex-spouse does attempt to abduct your children and take them to another country without your consent, you should notify local law enforcement as soon as you become aware of the situation and contact the relevant travel companies to see if you can intercept the abduction. Notifying the airline your ex intends to use can help delay abduction long enough for local law enforcement to retrieve your children. If your ex successfully reaches his or her destination country with your children, local law enforcement will likely partner with federal law enforcement and international entities to locate your children and bring them home.
If you are concerned about your ex attempting an international abduction or you simply want to protect yourself and your kids before an international trip, speak the a family law attorney as soon as possible to review your custody agreement.
A divorce is hard on everyone in the family, especially the children. Many times, the custodial parent will want to move to a new city or state and start life anew. While the parent may feel this necessary, child relocation is often a contentious subject between the two parents, because one will feel that their rights and abilities as a parent are being violated.
Process of Filing for Child Relocation in Colorado
If you wish to move far enough away from the other parent that the geographic ties between them and the children would be erased, you must file a petition with the court if you and the other parent cannot come to an agreement on your own. The relocation papers are not filed until after a court order regarding parenting time is given. The process of filing for relocation includes:
- Written notification must be given to the other parent – and usually their lawyer as well – which contains the location you wish to move to, why you are moving and a revised parenting plan.
- A filing fee of $105 is required. If you cannot pay it, you must complete a Motion to File without Payment.
- Other forms that could be necessary include: sworn financial statement and child support worksheets.
- Upon filing all the proper forms, there will be a court hearing to determine the validity of your wishes.
The forms can be gotten from the Colorado Judicial Branch website, and should be as honest and thorough as possible. If the other parent disproves any of your claims for why the move is necessary you may face criminal charges.
Colorado Child Relocation Court Hearing
Bottom line, the court tries to determine what is best for the children. According to Colorado law, the court will take all of the following into account during the hearing:
- The reasons why the party wishes 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 child 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.
- Any other relevant factors bearing on the best interests of the child.
All of this information must be provided in order for the court to consider your petition seriously. If your reasons for relocation include fear of violence or abuse by the other parent towards you or the children, Colorado law stipulates that the motion be heard within seven days.
It’s worth re-mentioning that the court will determine the best course of action based on the needs of the children; a move within Colorado or even within the same metropolitan area can create logistical and emotional problems for the children, so your reasons and evidence for the necessity of relocation should be convincing.
A good Colorado divorce attorney will help you sift through the paperwork and comply with all legal requirements. Going through a separation is not just difficult for you but for the children as well, and an attorney can help make the process as painless as possible.
For more information on divorces: see our divorce FAQ’s.