When one of the litigants fails to appear or to respond to a motion, a court can enter a default judgment, and give the other party what he/she wants without making specific findings. Except in parenting cases, and especially except for a parent wanting a relocation with children after divorce – or, as in the case discussed below, when one parent wants to move post-decree in an APR case when the trial judge has already entered parenting orders.
Parenting Orders Require Best Interests of the Child
When it comes to child custody, the family law judge ” shall determine the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child.” C.R.S. 14-10-124(1.5) (emphasis added), with the statute listing nine specific factors the court is required to consider. (For a detailed discussion of those factors, see our Best Interests of the Children article in the Colorado Family Law Guide.)
And relocating a child after a decree is even harder – the court must consider not only the nine “best interests” factors, but eight additional factors to determine whether moving the child post-decree is in the child’s best interests. C.R.S. 14-10-124(2)(c). See our Relocation of Children article in the Colorado Family Law Guide for a more in-depth discussion of this issue.
Trial Judge Granted Relocation by Default
In XIV, the trial court had previously restricted the mother’s parenting time after the child tested positive for drugs while in her care. A few months later, the father filed a motion seeking to move out-of-state with the child to Florida, as well as to modify parenting time and decision-making. After the mother failed to respond to the motion, the court granted permission for the father to relocate by default, and directed a hearing be set on the parenting time and decision-making issues.
By now, the mother had hired an attorney, and filed a motion asking the court to reconsider the relocation, explaining she thought she had more time to respond to the father’s relocation motion. The trial court denied her motion. The mother appealed, and in an unpublished decision, the Colorado Court of Appeals reversed, finding it was an abuse of discretion to grant permission to relocate without making any specific factual findings to show that it had considered the child’s best interests. XIV, ¶ 10.
Specific Findings Required for Relocation of Child
In the seminal case on relocating a child out of state, the Colorado Supreme Court held that for a relocation, “the court must thoroughly disclose the reasons for its decision and make specific findings with respect to each of the statutory factors”. Ciesluk, at 138.
By contrast, the brief order permitting the father to move with the child in XIV merely noted that the motion was deemed confessed as the mother did not respond, and:
“THE COURT being fully advised in the premises and having considered said Motion, and good cause appearing therefore, does hereby GRANT [Father’s] Verified Motion to Relocate Minor Child”XIV, ¶ 16.
Merely paying lip service to there being “good cause” was not sufficient for the appellate court:
“The order does not indicate that the court considered the relevant factors in section 14-10-129(2)(c) and section 14-10-124(1.5)(a) concerning the child’s best interests. The court made no findings, nor did it explain the basis for its order (other than a general reference to “good cause appearing therefore”)… The absence of findings and explanation is particularly problematic here because father’s motion to relocate the child and the case’s history strongly suggested (at the very least) that father’s motion was contested. Yet we cannot tell whether, in the face of this dispute, the court found that the child’s relocation to Florida was in his best interests, or what considerations supported such a findingXIV, ¶ 17.
Remand for Hearing on Relocation of Child
Normally, the Court of Appeals remands to the trial court, which can decide whether to make more specific findings or whether a hearing is necessary. In this case, the appellate court went a step further, noting that the facts were disputed, so ordered a hearing on the relocation. ¶ 19.
Victory for Mother? Not So Fast
Note that the appellate court did not hand mother a complete victory on the actual issue of relocation by ordering that the relocation be denied. Instead, it directed a hearing where the trial court will consider evidence on whether relocation was in the child’s best interests. While the mother scored a procedural victory in that the relocation order was reversed, now her real struggle begins. And ultimately she may well find that she won the battle, only to lose the war. It may be dangerous to speculate on cases where I’m not involved, so don’t know the facts, but I like to live life on the edge!
The appellate ruling came down a full year after the trial court allowed the father to move, and not only did the appellate court order that the child can remain in Florida pending the hearing, but, as is the norm, the best interests of the child must be considered as of the date of the hearing, not the date the original motion was filed a year earlier. ¶ 20.
The mother was likely already in a “come from behind” situation because the trial court had already found she endangered the child and restricted her parenting time. And on top of that, the child has now lived in Florida for a whole year, and was no doubt settled in, giving the father strong arguments that denying relocation would mean disrupting the child from his stable home. The mother will need a compelling case to overcome these hurdles and prevent a relocation which has already happened.
Takeaway – Trial Courts Which Cut Corners Get Reversed
It’s tempting for family law attorneys to strive for victory on procedural grounds – it’s quicker and cheaper to say “she defaulted” than it is to set the matter for a hearing months later and actually prove your case. Even your humble correspondent has attempted this, though only by filing a sworn motion containing specific allegations supporting a modification of parenting time, accompanied by a proposed order which contains specific, proposed findings.
Much to the chagrin of clients, this tactic rarely works. Being prudent, judges will at least set parenting cases for a default hearing so they can consider actual evidence pertaining to the “best interests of the children.”
The XIV case serves as a reminder that certain family law statutes often require specific findings to be made before a court can issue a ruling – and XIV joins a long line of cases where the court of appeals has reversed trial courts which ordered maintenance, find a person in remedial contempt, or deviate from the child support guidelines without specific findings.
And hearings, with specific findings, are especially required in child custody cases, including modifying parenting time, or before restricting one parent’s time with the children. And, as the XIV case reminds us, relocation with children also requires specific findings.
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