In re Marriage of Ciesluk, No. 04SC555.

• Citation: 113 P.3d 135
• Decision Date: 06 June 2005
• Docket Number: No. 04SC555.
• Parties: In Re the Marriage of Michelle A. CIESLUK, Petitioner, and Christopher J. Ciesluk, Respondent.
• Court: Supreme Court of Colorado

113 P.3d 135

In Re the Marriage of Michelle A. CIESLUK, Petitioner, and

Christopher J. Ciesluk, Respondent.

No. 04SC555.

Supreme Court of Colorado, En Banc.

June 6, 2005.

Ann Whalen Gill, PC, Ann Whalen Gill, Castle Rock, for Michelle A. Ciesluk.

Willoughby Law Firm, LLC, Kimberly R. Willoughby, Alisa Campbell, Denver, for Christopher J. Ciesluk. Justice RICE delivered the Opinion of the Court.

In this post-dissolution proceeding between Michelle A. Ciesluk (Mother) and Christopher J. Ciesluk (Father), Mother appeals the trial court order denying her motion to modify parenting time pursuant to section 14-10-129, C.R.S. (2004). We hold that section 14-10-129, as amended, eliminates the three-part test set forth in In re Marriage of Francis, 919 P.2d 776, 784-85 (Colo.1996), including the presumption in favor of the majority time parent who is seeking to relocate. Instead, both parents share equally the burden of demonstrating what is in the child's best interests. Ultimately, it is incumbent upon the trial court to consider all of the relevant factors under subsection 14-10-129(2)(c) and to decide what arrangement will serve the child's best interests.

In light of this conclusion, we hold that the trial court abused its discretion because it improperly created a presumption in favor of Father in applying section 14-10-129 to the facts of this case. Accordingly, we reverse the court of appeals' holding and remand with instructions to return the case to the trial court for proceedings consistent with this opinion.

I. Facts and Procedural History

Mother and Father met and married in Nebraska in 1995. One child, Connor, was born to them on February 27, 1997. In September 2002, the parties amicably divorced. Pursuant to the separation agreement incorporated into the decree of dissolution, Mother is the primary residential parent for school residency and other legal residential requirements; Father has parenting time on two weekends and two weekday evenings per month. Mother and Father have joint parental responsibility and decision-making authority.

In February 2003, Mother, a Sprint employee for seven years, was laid off as a result of Sprint's workforce reduction in Colorado. She sought alternative employment in Colorado and in Arizona, where her father, brother, sister-in-law, and nephew reside. Though she was unable to find a comparable job in Colorado, Sprint interviewed her for a position in Arizona. However, Sprint refused to extend her an offer until she committed to relocating to Arizona.

Consequently, in March 2003, Mother filed a motion to modify parenting time¹ pursuant to section 14-10-129 to allow her to relocate to Arizona with Connor. Mother included with her motion a proposed parenting time schedule giving Father four unscheduled visits per year with thirty days notice, one week at Christmas, two weeks during the summer, and one week at spring break.² Mother proposed to pay half the airfare costs associated with these visits. When Mother and Father were unable to agree on these terms, Father opposed the motion and moved for the appointment of a special advocate to determine Connor's best interests.

The special advocate met with both parties together and individually, visited both parties at their respective homes, and met individually with Connor. She also interviewed the parties' respective friends and extended family, as well as Connor's teachers and principal. Based on her observations, she prepared a report using the factors in subsection 14-10-129(2)(c) to determine Connor's best interests. In her analysis, she concluded that, as a result of the relocation, Father's presence in Connor's life would be greatly reduced and that such reduction would have a negative impact on Connor. As a result, she recommended that it was in Connor's best interests to stay in close proximity to both Mother and Father. At the subsequent hearing to modify parenting time, at which Mother, Father, and the special advocate testified, the trial court first held that section 14-10-129 eliminates the three-part test set forth in Francis, including the presumption in favor of the majority time parent who is seeking to relocate. Instead, the trial court held that it was required to determine whether modification of parenting time is in the best interests of the child, taking into account all relevant factors in subsection 14-10-129(2)(c).

In applying this standard, the trial court adopted the special advocate's analysis, incorporated her recommendation into its order, and denied Mother's motion to modify parenting time, holding that "parenthood results in some sacrifice and it is better off for parents to remain in close proximity." In making this determination, the trial court gave substantial weight to the impact of the move on Connor's relationship with Father and to Mother's failure to establish how the move would "enhance" Connor. Mother appealed.

In In re Marriage of Ciesluk, 100 P.3d 527, 530 (Colo.App.2004), the court of appeals affirmed the trial court order in its entirety, holding that the legislature intended section 14-10-129 to overrule Francis and to eliminate the presumption favoring a majority time parent. The court of appeals further held that the trial court did not abuse its discretion in giving substantial weight to the impact of Mother's relocation on Connor's relationship with Father. In re Marriage of Ciesluk, 100 P.3d at 530.

On certiorari, Mother contends that the trial court misapplied section 14-10-129 in determining that it was not in Connor's best interests to modify parenting time. First, Mother argues that the trial court wrongly interpreted section 14-10-129 to eliminate the presumption in favor of the majority time parent articulated in In re Marriage of Francis. As a corollary, Mother argues that if section 14-10-129, as amended, discourages her from relocating, it unconstitutionally infringes upon her right to travel.

Mother next argues that the trial court abused its discretion in applying the statutory factors contained in subsection 14-10-129(2)(c) to the facts of this case. Specifically, Mother contends that the trial court (1) improperly required her to show that the modification of parenting time would "enhance" Connor and (2) improperly relied upon a Journal of Family Psychology article in concluding that "it is better off for parents to remain in close proximity." Mother asserts that the effect of this abuse of discretion was to create an unconstitutional presumption in favor of Father and an insurmountable burden for majority time parents to overcome.

We hold that the trial court properly concluded that section 14-10-129 eliminates the Francis test, including the presumption in favor of the majority time parent. However, we conclude that the trial court abused its discretion in applying section 14-10-129 to the facts of this case, and that such abuse of discretion unconstitutionally infringed upon Mother's right to travel. Accordingly, we remand to the trial court for proceedings consistent with this opinion.

II. Section 14-10-129 and the Francis Test

We first address whether the three-part test articulated in Francis remains viable in light of the General Assembly's recent amendments to section 14-10-129. Mother argues that section 14-10-129, as amended, simply modifies the best interests analysis set forth in Francis, but does not affect the presumption in favor of the majority time parent in relocation cases.³ We disagree and conclude that section 14-10-129 eliminates the Francis test.

A. The Francis Test

In Francis, we established a three-part test to determine whether a sole residential custodian's⁴ proposed move was in the best interests of the child. 919 P.2d at 784-85. First, a custodial parent had to present a prima facie case showing that there was a sensible reason for the move. Id. Once the custodial parent had presented a prima facie case, a presumption in favor of allowing the child to move with the custodial parent arose; the burden then shifted to the non-custodial parent to show that the move was not in the child's best interests.⁵ The non-custodial parent could establish that the move was not in the child's best interests and overcome the presumption by showing that one of three factors had been met; namely, that (1) the custodial parent had consented to the modification of custody to the non-custodial parent; (2) the child had been integrated into the non-custodial parent's family with the custodial parent's consent; or (3) the child's present environment endangered his physical health or significantly impaired his emotional development ("the endangerment standard"). Id. at 785. If no credible evidence of endangerment existed, the non-custodial parent alternatively could overcome the presumption by establishing by a preponderance of evidence that the negative impact of the move cumulatively outweighed the advantages of remaining with the primary caregiver. Id.

B. Amended Section 14-10-129

In response to dissatisfaction with the Francis test, the General Assembly amended section 14-10-129, effective September 1, 2001, to set forth a new procedure for determining whether modification of a parenting time order due to a majority time parent's relocation is in a child's best interests. See ch. 222, sec. 1, § 14-10-129, 2001 Colo. Sess. Laws 761, 761-763; see also Audio Tape: Hearing on S.B. 01-029 Before the Senate Judiciary Comm., 63d Gen. Assem., 1st Reg. Sess. (Colo. Feb. 12, 2001)(on file with Colorado State Archives)(hereinafter Feb. 12 Hearing)(statements of Senator Gordon, Chairman, Senate Judiciary Committee; Beth Henson, family law attorney; Dr. Bill Austin, licensed Colorado psychologist in consultation with Colorado Interdisciplinary Committee on Children and Family; and Frances Fontana, President, Colorado State Interdisciplinary Committee).

The new legislative scheme retained the language set forth in subsection...