Question:
My wife and I are about to go through a divorce. She currently lives out of state with our minor child while she works a temporary job. I want us to have equal parenting time, but this will be impossible if she continues living in another state.
If we get a divorce, will she be forced to move back to the home state since this is where our child has lived his entire life up until she took her job out of state?
Answer:
Where and with whom the children should live will be determined in the course of the divorce action. If one parent intends to move or remain out of state, that move will obviously be a big factor for the court to consider and whether that move is in the child’s best interest.
Many courts will not prohibit one of the parents from moving. However, courts frequently dictate where the child may live, and it is very often tied to the court with jurisdiction. It is common for a judge to allow a parent to move, but not take the child, if that is determined to be in the child’s best interest. I do not practice in Colorado, so I can only speak in generalities based on my experience.
When a court sets a parenting schedule in a custody and placement order, it is typically required to set a schedule that allows the children to have regularly occurring, meaningful periods of physical placement with each parent that maximizes the amount of time the child may spend with each parent.
While maximizing time with each parent does not require equal time with each parent, the court can order that accomplishes time with both parents in many different ways while trying to accommodate all of the child’s needs.
You may have some advantage if you act quickly or time your filing in a specific way. In most states, when one party files for divorce, the filing imposes rules and standard orders that govern during the pendency of the case.
These orders include prohibitions about relocating a distance from the other parent or out of the court’s jurisdiction until a determination has been made on custody and placement of the children.
Jurisdiction is required in order for the court to have authority to issue orders on custody and placement. Jurisdiction is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a federal law that governs in all states.
To have jurisdiction, the state must be the “home state” for the child – that is the child must have lived there for 6 months, or if the child is less than 6 months old, then the state the child was born in. If there is no home state, then the courts must determine which state has a significant connection and substantial evidence.
The schedule and timing that is best for your case depends on many factors and the specific rules in your jurisdiction. I do not practice in Colorado, so I cannot inform you as to the state’s specific laws.
You should contact an attorney who is licensed in your state to further discuss the specifics of your situation. Cordell & Cordell does represent clients nationwide. Thank you for submitting your question.
Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.
