Skip to main content

Relocate with child out of state _before_ filing for divorce in Colorado - can this be done legally, without losing custody?

Denver, CO |

My H and I have been working in a collaborative law divorce process for several months - the primary issue involves parenting time (I want to move out of state with our child, but my husband doesn't want our child to leave the state). I've recently learned that my spouse is consulting with a new lawyer for litigation, i.e., abandoning collab process. I have no family members and few friends in Colorado, and I want to move to a place where I have support - especially if I'm going to be drawn into a long legal battle. I'd been trying to work with spouse for fair parenting time, but he's refused to cooperate and basically abused the collab process to stall for time. No divorce papers have been filed yet - can I file for a divorce in Colorado, but from out of state, and without losing custody?

Husband also has serous issues with substance abuse and depression - a formal S.A.E. was done as part of the collaboration.

+ Read More

Attorney answers 3

Best Answer
Posted

You can legally leave the state at any time before the divorce has been filed. However, unless you are able to establish residence for yourself and the children in the new state for six months before your husband files for divorce in Colorado, you can expect the divorce and child issues to be addressed in this state. If your husband has a lawyer he is almost certain to be told this.

If you move out of state and then have to defense a divorce in Colorado, you will have to return to the state to address custody and parenting time. It is not absolutely certain, but it is certainly possible, that the Judge may order the child returned to Colorado. In that case you will either have to come back or turn the child over to your husband for the majority of the parenting time.

You need to have a good family law attorney on your side and be prepared for a serious fight if you plan to move before the divorce is filed. From what you have posted, your husband isn't going to let go easily.

You can reach Harkess & Salter LLC at (303) 531-5380 or info@Harkess-Salter.com. Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.

Posted

If you relocate with your child prior to filing for divorce after having known for several months that the issue of relocation was in dispute, be prepared for your husband to file for divorce when you leave and for a very angry judge to order you to return the child to Colorado.

www.karlgeil.com. This answer is provided as general information about a legal issue, is not legal advice specific to a particular case, and does not create a lawyer-client relationship with the person asking the question.

Posted

You can legally move before the case is filed but its a bad idea. If you want to move, you should get the divorce filed and get the court's permission to relocate with the child on a temporary basis. The court may not grant permission but that will save you a lot of headaches later on in your case. Do it the right way.

David Littman

David Littman

Posted

Courts tend to view very negatively the actions of a parent who moves with a child and then files for dissolution of marriage. The better procedure is to file for DOM and then seek court permission to move. This can be a difficult, uncertain, lengthy and expensive process but it gives you the best opportunity to succeed.

Anne Whalen Gill

Anne Whalen Gill

Posted

Mr. Littman is right. It's the best way to proceed because it avoids antagonizing the judge.

Asker

Posted

Thanks for the information. What is involved with seeking permission to relocate when filing for divorce? Is this permission typically granted or denied, and on what basis?

Christopher Michael McLane

Christopher Michael McLane

Posted

It requires filing a motion to relocate. There are many factors that the court considers, the primary consideration being what is best for the child. Make sure you have a specific plan and good reasons for the proposed move. The court looks at each case individually and there is no typical answer. You may have better luck getting permission on a temporary basis while the case is pending, but it could still be denied on a permanent basis.

Asker

Posted

Thanks very much Christopher. One more question - it's uncertain at this point whether my husband has already filed papers or not. Can I file for permission to temporarily relocate my child independently of filing for a divorce, or does it need to happen concurrently when filing an initial petition (or responding to one)?

Christopher Michael McLane

Christopher Michael McLane

Posted

You should first find out if he has filed for divorce, and if so, file your motion to relocate into the divorce case. If he hasn't filed, you may want to consider filing for the divorce OR for legal separation. There may be other ways for the court to assume emergency jurisdiction over the child but it is a very complicated and uncertain proceeding. At a minimum, get written permission from your husband to leave with the child.

Asker

Posted

Thanks Christopher. Is there any benefit of filing for legal separation instead of divorce? I won't be able to get written permission from my husband to leave the state with our son (his preventing our child leaving the state is the crux of the issue).

Christopher Michael McLane

Christopher Michael McLane

Posted

Sometimes a legal separation will allow you to maintain health insurance through a spouse's health insurance plan. A legal separation also allows for time to reconcile. The legal separation can then be converted to a divorce. A divorce and legal separation are essentially the same proceeding, so depending on the circumstances it may not be worthwhile to pursue a separation instead of divorce.

Asker

Posted

Divorce is definitely the way to go in this case. My understanding is that my spouse can't drop me from his health insurance until after the divorce is finalized, and that he can't drop our son at all. Is that true?

Christopher Michael McLane

Christopher Michael McLane

Posted

Upon filing divorce and serving the other party there is an automatic injunction that prevents either party from cancelling insurance (among other terms) without agreement of the parties or further court order. After the divorce you won't be able to stay on his insurance. The court may or may not order him to keep insurance on your son.