In re the Marriage of Graham

121 P.3d 279, 2005 Colo. App. LEXIS 512, 2005 WL 774412
CourtColorado Court of Appeals
DecidedApril 7, 2005
DocketNo. 03CA1922
StatusPublished
Cited by2 cases

This text of 121 P.3d 279 (In re the Marriage of Graham) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Graham, 121 P.3d 279, 2005 Colo. App. LEXIS 512, 2005 WL 774412 (Colo. Ct. App. 2005).

Opinions

Opinion by:

Judge DAILEY.

In this postdissolution of marriage proceeding, Marie S. Graham, a/k/a Marie S. Swim (mother) appeals from an order designating Jeffrey V. Swim (father) the primary residential parent following mother’s decision to relocate to another state and providing for joint decision-making. We affirm.

The marriage of the parties was dissolved in 1998. Custody of the parties’ two children was granted to mother, and father was granted liberal parenting time in accordance with the parties’ separation agreement.

Mother remarried, and she and her new husband (stepfather) decided to relocate to Missouri. In June 2003, after learning that mother’s move was imminent, father filed a motion to modify parenting time, decision-making responsibilities, and child support pursuant to §§ 14-10-129, 14-10-131, and 14-10-115, C.R.S.2004. At the same time, father moved for the appointment of a special advocate and sought a temporary restraining order to prevent mother from removing the children from Colorado, pending the special advocate’s report and a hearing on the matter. The trial court refused to grant a temporary restraining order, but permitted father to amend the motion to one seeking a forthwith hearing, and ordered that the children remain in Colorado until the hearing had taken place.

The court appointed a special advocate, who submitted her report in August 2003. The court interviewed both children and heard the testimony of the special advocate, the parties, and the spouse or partner of each party.

After determining that the relevant statute was § 14-10-129, the court adopted the special advocate’s findings and recommendations and ordered (1) that decisions regarding the children should be made jointly, (2) that the children should reside primarily in Colorado with father, and (3) that mother should have parenting time during school breaks and holidays. Mother appeals from this order.

I.

Mother contends that the trial court erred in applying § 14-10-129 to this case and in determining that her relocation to another state, or factors relating to such relocation, constituted a material change in circumstances sufficient to justify modifying the prior parental responsibility decree. We disagree.

Pursuant to § 14 — 10—131 (2)(b.5), C.R.S. 2004, the court may modify a custody decree or decree allocating decision-making responsibility if there has been a modification in parenting time pursuant to § 14-10-129 that warrants a reallocation of decision-making responsibilities. See § 14-10-103(4), C.R.S. 2004; In re Marriage of Roosa, 89 P.3d 524, 527 (Colo.App.2004)(term “custody” was abandoned in 1999 and changed to “parental responsibilities,” which includes both “decision-making responsibilities” and “parenting time”).

Pursuant to § 14-10-129(l)(a)(I) and (II), C.R.S.2004, when a party with whom a child resides a majority of the time seeks to relocate with the child to a residence that will substantially change the geographical ties between the child and the other parent, the court may modify parenting time if, after taking into account all relevant factors, it determines that modification is in the best interests of the child.

Here, mother was the primary residential parent, and her plan to move to Missouri would have substantially changed the geographical ties between the children and father, who remained in Colorado. Accordingly, the trial court properly applied §§ 14-10-129 and 14 — 10—131(2)(b.5) to determine whether changes in parenting time and decision-making responsibilities were warranted.

II.

Mother contends that the trial court abused its discretion in changing the chil[282]*282dren’s primary residence because of her relocation. We disagree.

The determination of parenting time is a matter within the sound discretion of the trial court. In re Marriage of Finer, 920 P.2d 325, 328 (Colo.App.1996). The reviewing court will not substitute its judgment for that of the trial court so long as sufficient evidence supports the trial court’s ruling. In re Marriage of Monteil, 960 P.2d 717, 719 (Colo.App.1998).

The trial court’s findings are sufficient if they demonstrate that the court considered all pertinent factors and, along with the conclusions of law, enable the appellate court to understand the basis of the court’s order. In re Marriage of Garst, 955 P.2d 1056, 1058 (Colo.App.1998). The court may satisfy its obligation to make findings by adopting the findings of a witness. See In re Marriage of Garst, supra (court’s adoption of findings of custody evaluator demonstrated that court had considered factors set forth in statute).

Section 14-10-129, as amended, no longer contains a presumption that the child should remain with the primary residential parent if that parent can demonstrate a sensible reason for relocating with the child. See In re Marriage of Ciesluk, 100 P.3d 527, 530 (Colo.App.2004)(cert. granted Nov. 8, 2004). Whether the child should relocate with one parent or remain in Colorado with the other depends upon an assessment of the child’s best interests, taking into consideration the factors enumerated in §§ 14-10-124(1.5) and 14 — 10—129(2)(e), C.R.S.2004. See § 14-10-129(l)(a)(II); In re Marriage of Ciesluk, supra, 100 P.3d at 529.

Here, after interviewing both parents, the children, other family members, school personnel, and others, and after considering the statutory factors set forth in §§ 14-10-124 and 14-10-129, the special advocate for the children opined that it would not be in the children’s best interests to relocate. The special advocate specifically opined that mother’s decision to move appeared to be predicated on her needs and desires and that she “did not fully contemplate how the children could be affected by separation from their father, their extended family, their half-brother and the community.” The special advocate noted that the children had attended the same school since preschool and them educational needs had been met at that school, their grandparents resided in the community, and the children were “very integrated in the community” and had been “active in sports and with peers.” The special advocate also noted that they had a meaningful relationship with a three-year-old half-brother in their father’s home.

The trial court found that the special advocate had addressed all relevant factors, including those enumerated in § 14-10-129(2)(c). In addition, the court found that father was a vital part of the children’s lives and that mother’s contention that she wanted to remove the children because of abuse and humiliation by father and his family was not believable. The court then found that the recommendations of the special advocate were in the best interests of the children, and the court adopted those recommendations.

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Bluebook (online)
121 P.3d 279, 2005 Colo. App. LEXIS 512, 2005 WL 774412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-graham-coloctapp-2005.