Sunday, September 11, 2005

custody - relocation - right to travel

In re Marriage of Ciesluk, 113 P.3d 135 (Colorado 2005)

This is a Colorado case, but it is interesting for its discussion of the effect of a parent's consitutional right to travel (see e.g. Shapiro v. Thompson, 394 U.S. 618 (1969)) in a relocation case in relation to other important factors -- a parent's right to the care and control of her/his children (Troxel v. Granville, 530 U.S. 57 (2000)), and the best interest of the children.

The court discussed the approaches of three other states. Wyoming gives priority to the right to travel, Watt v. Watt, 971 P.2d 608 (Wyo. 1999). Minnesota holds that because the best interest of the child is a compelling state interest, there is no need to balance the competing rights of the parents set out in Shapiro and Troxel. LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. Ct.App. 2000). New Mexico courts say that the interests of the parents and children are best protected through an equal sharing of burdens, Jaramillo v. Jaramillo, 8213 P.2d 299 (N.M. 1991), also adopted by Maryland, Braun v. Headley, 750 A.2d 624 (Md. Ct. App. 2000). The Colorado court chose to apply the New Mexico/Maryland standard, which it found to be most consistent with the detailed Colorado statute governing relocation cases.

Donald Marritz, staff attorney
MidPenn Legal Services-Gettysburg