In re Marriage of Francis – Child Custody
In re Marriage of Francis, 919 P.2d 776 (Colo. 1996).
NATURE OF THE CASE: This family law case involved a dispute over a modification of custody from sole to joint custody.
FACTS: W and H divorced in 1992 and stipulated to W’s sole custody of their five minor children, aged between 4 and 14. The parties lived in Fort Collins, Colorado all their children’s lives and the separation agreement stated that it was in the children’s best interests to have continued interaction in Fort Collins. The parties made this statement knowing that W presently intended to go to school outside the area. In 1993, W was accepted into a two year program at a physician’s assistant school in Long Island, New York. When H learned of W’s plan to move to New York he filed a petition for modification of custody for joint or sole custody and a motion to prohibit W from taking the children when her. The court agreed with H and modified its order such that H would obtain sole custody if W left the state. W appealed, the court of appeals affirmed, and this appeal resulted.
ISSUES: 1) Must a change in residential custody be determined under the endangerment standard or the best interests standard? 2) Is there a presumption that a custodial parent’s choice to move children should generally be allowed?
RULE OF LAW: 1) A change in residential custody must be determined under the endangerment standard. 2) Yes. There is a presumption that a custodial parent’s choice to move children should generally be allowed.
HOLDING AND DECISION: Because of the importance of a child’s continuing stability in his or her relationship with the residential custodian, consideration of the endangerment standard should be taken into account for any removal decision. A removal dispute involves potential modification of custody and in order to honor the legislative determination favoring the residential custodian of children the trial court must analyze a removal petition in light of the endangerment standard. We find that the child’s best interests are served by preserving the custodial relationship.
This leads logically to a rebuttable presumption that the custodial parent’s choice to move with the children should generally be allowed. In this situation the custodial parent must present a prima facie case showing there is a sensible reason for the move. If that is shown, the burden then shifts to the non-custodial parent to show that the move is not in the best interests of the child. This showing by the non-custodial parent can consist of showing that the custodial parent has consented to a modification of custody, the child has been integrated into the noncustodial parent’s household with the custodial parent’s consent, or that the child would be endangered by the move.
The endangerment is peculiar to each individual child. If no credible evidence of endangerment is shown then the noncustodial parent can overcome the presumption by a preponderance of the evidence that the negative impact of the move outweighs the advantages of remaining with the primary care giver. Under these facts, the trial court made no finding of specific physical or emotional harm that would result from the move to New York. The court gave no weight to the custodial parent’s relationship with the children and merely focused on the geographical advantages to the children to remain in Fort Collins.
DISPOSITION: Reversed and remanded.