This case is a prime example of how dysfunctional families presenting their disputes before dysfunctional courts leads to dysfunctional case law and precedent.
For many years the Equal Justice Foundation has pointed out that under Colorado law a man has to be functionally insane to marry and a drooling idiot to sire a child. The following is an example of what happens when those conditions hold.
Jennifer Spahmer and Todd Gullette met in Colorado in September 2000 and started dating. Shortly thereafter Jennifer accepted a position as a financial analyst with Microsoft and moved to Washington state. Todd visited with Jennifer after she moved and considered moving there. The record does not state whether Jennifer also went with other men during the months she lived in Washington.
In January 2001 Jennifer learned she was pregnant and she and Todd got engaged. While Todd originally planned on moving to Washington, the offer of a partnership in a real estate company in Colorado changed his mind. As a result, in May 2001 Jennifer left Microsoft and moved into Todd's townhome in Boulder.
In September 2001 Jennifer bore a daughter, Jordan, but the relationship between Todd and Jennifer began to deteriorate for unstated reasons. The record does not state whether a DNA paternity test was done. The engagement was ended but the couple entered counseling to see if their affair might be salvaged.
In the attempt to patch things up they spent Thanksgiving of 2001 with Jennifer's extended family in Arizona, where both Todd and Jennifer applied for jobs, apparently without success.
Jennifer's stepfather, mother, and half-sisters offered to help in any way they could if Todd and Jennifer moved to Arizona. Despite this offer, the couple separated again when they returned to Colorado after the holiday. Todd moved in with his parents and Jennifer remained in the townhome with baby Jordan.
As with most lover's quarrels, Todd and Jennifer have slightly different versions of what happened next. Jennifer claims she asked Todd if she could spend Christmas with her extended family in Arizona. On December 10, 2001, Jennifer started driving to Arizona, calling Todd after she started to let him know she had left.
Todd reacted emotionally and unwisely upon learning Jennifer had left for Arizona. Though he admits Jennifer and he had agreed to her spending Christmas in Arizona, he claims he did not know she was leaving as early as December 10 th . As Jennifer had also moved most of her belongings out of the townhome, Todd assumed Jennifer was leaving Colorado permanently with baby Jordan.
In response to Jennifer's early departure Todd apparently panicked and filed suit requesting allocation of parental rights and responsibilities with regard to baby Jordan in Judge Leal Montgomery's court, case number 01 DR 1749, on December 10, 2001. Incidentally, that is not a way to end a relationship recommended by the Equal Justice Foundation.
Filing suit wasn't bad enough. Todd also filed a motion for a restraining order that required Jennifer to return baby Jordan to Colorado and prohibit her from taking the child out of state again.
The restraining order was served on Jennifer at her extended-family's home in Arizona. After that merry little Christmas present, Jennifer returned to Colorado with the baby. One can only imagine Jennifer's state of mind at this point, but a life of marital bliss with Todd likely wasn't one of the options she was considering.
Even though Todd and Jennifer were not married, under Colorado law parental responsibilities are determined in court just as any dissolution of marriage would be.
A hearing for Temporary Orders was subsequently held and Judge Montgomery gave Jennifer sole decision-making authority concerning Jordan, allocated parenting time between Todd and Jennifer, and restrained Jennifer from removing baby Jordan from Colorado unless she had the judge's or Todd's permission to do so.
Jennifer certainly wasn't going to stand for being told what to do, especially if it meant she would have to stay anywhere near Todd. Thus, she filed a "Motion for Forthwith Hearing on Removal of Minor Child From Colorado" requesting that Judge Montgomery enter an order "...allowing the permanent residence of the minor child to be changed from the State of Colorado to the State of Arizona and to modify previous parenting time orders to accommodate that change."
Judge Montgomery then took the customary step of appointing a special advocate and set a hearing for allocation of parental responsibility as defined under § 14-10-124(1.5) C.R.S. At the hearing Jennifer, Todd, and the special advocate all testified. After hearing their testimony the judge ruled that it was in baby Jordan's best interest to remain in Colorado stating: "Jordan was born here and has spent the entire eleven months of her life to date here. Jordan is to remain a Colorado girl." In accordance with her ruling, Judge Montgomery ordered Jennifer to remain in Colorado.
In reaching her decision, the judge also noted that Jennifer lacked only one semester to complete her degree at Colorado State University in Fort Collins and suggested that might be a wise course of action to pursue.
Judge Montgomery, who obviously doesn't fit the typical profile of a gender-biased family court judge, also ordered Todd and Jennifer to develop their own parenting schedule with the help of a parenting coordinator.
Sounds fair and reasonable if one is of the opinion that kids need both parents.
But no one was going to tell Jennifer what she could do or where she could live, especially if that despicable Todd was nearby. So she appealed and family law attorneys were happy and wealthy, if not wise.
As usual the Court of Appeals basically rubber stamped the trial courts findings. On August 14, 2003, Judge Webb, with Ney and J. J. Casebolt concurring, affirmed the judgement in part, reversed it in part and remanded the case back to Judge Montgomery.
The Court of Appeals held that the trial court properly applied the best interests of the child standard in denying Jennifer's request to move to Arizona with baby Jordan. But they did not address her argument that she had a constitutional right to travel freely because she had failed to raise that issue prior to the entry of Permanent Orders.
Their decision was not published as permitted under C.A.R. 35(f).
Jennifer petitioned for a rehearing but that was denied October 9, 2003. Pretty typical of what happens when family court decisions are appealed.
Undaunted, and not yet bankrupted by attorney fees, Jennifer petitioned the Colorado Supreme Court for certiorari.
Remarkably, and never a court to pass up a chance to set bad precedent, certiorari was granted en banc on March 15, 2004, ostensibly to determine "...whether a trial court may order a parent to live in a specific location when it determined the best interests of the child."
On June 6, 2005, the Colorado Supreme Court concluded, en banc:
"...that in an initial determination to allocate parental responsibilities a court has no statutory authority to order a parent to live in a specific location. Rather, the court must accept the location in which each party intends to live, and allocate parental responsibilities accordingly in the best interests of the child."
Jennifer had also argued that Judge Montgomery's order was unconstitutional but the Supreme Court held that because the trial court had no statutory authority to order her to live in Colorado they did not address the constitutional issue. Leave that for more litigation later and to make even more money for family law attorneys.
The Colorado Supreme Court thus reversed Judge Montgomery's ruling and remanded it back to her court for a ruling consistent with the higher court's findings. It is probably too much to expect that Judge Montgomery might find that if Jennifer wants to leave Colorado that custody of baby Jordan should then be transferred to Todd.
Ignored was the precedent set in the April 29, 2004, decision by the California Supreme Court in the LaMusga case that if the custodial parent (typically mom) moved far away it placed an unreasonably high burden on the non-custodial parent (typically Dad). The California Supreme Court also stated that the disruption of contact with a responsible father constituted a "harm" to children.
Among others, a study by Sanford Braver and his associates at Arizona State University, Relocation of Children After Divorce and Children's Best Interests, makes a strong argument against moving children far away from their fathers. Apparently Judge Montgomery had asked Todd and Jennifer to review this article and comment before she made her decision.
Logic has had little impact on the redfem Colorado Supreme Court. Case 03 SC 751 gives any mother the right to take the kids and move away from the father simply because she wants to, and even though she has not found employment in the new location.
Rather than moving toward fixing the train wreck of families and marriage in this state, this ruling by the Colorado Supreme Court moves us closer to days of darkness.
Denver Post columnist Al Knight summarizes the problems created by this depraved ruling in the following article.
© 2005 by Al Knight, Denver Post
Reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.
June 15, 2005 In two decisions last week, the court handed the prize to divorced or divorcing mothers who had lost at the trial court level and in the Colorado Court of Appeals.
In those two cases, the lower courts had found wonder of wonders that it was in the best interests of the affected children to maintain close contact with their fathers. The trial judges in those cases ruled that the mothers of the children could not in one instance continue to reside in Arizona and in the other couldn't relocate with her child to that state.
Before dealing with the court's reasoning, a little history is in order. In 1963, and again in 1980, the Colorado Supreme Court found that it was against state policy to remove a child from the state's jurisdiction without a showing that the move was in the child's best interest.
That standard was tossed with a Supreme Court decision in 1996 in which the court discovered a presumption that it is in a child's best interest to remain with the custodial parent should that parent relocate to another state.
The state legislature, for obvious reasons, didn't much like that decision and so the law was changed in 2001 to provide that a court, presented with a request of a parent to move out of state, must take into account a long list of relevant factors, including the impact the move would have on the non-custodial parent's relationship with the child.
The new law clearly had two purposes: to rebuke the court for its decision creating a presumption in favor of the custodial parent (almost always the mother); and to level the playing field to benefit the father.
So it came to pass that a trial judge had to interpret the new law. In doing so, he appointed a special advocate to look into all of the relevant relationships affecting the child. The special advocate (a woman) found that the child would be adversely affected by the separation from its father. Before reaching a decision, the judge also asked the parties to comment on an article in a respected family journal that discussed the adverse affects on children when the parents lived in widely separated locations.
Ultimately, the judge noted that the mother, who had not yet found employment in another state, was willing to stay in Colorado and so he ruled that she could not relocate to Arizona.
The Court of Appeals, in affirming this decision, specifically noted:
"...that the special advocate had found that the significant reduction in visitation by the father would have caused "irreparable harm" to the bond between the father and the child."
The three-judge panel found no abuse of discretion by the trial judge. On appeal, the Supreme Court held that the trial judge had abused her discretion by "prematurely" concluding there is a value to giving both parents ample access to their child.
Justice Nancy Rice, who wrote the related opinions, said that the trial court should have given more consideration to the advantages the child would receive by staying with the "primary caregiver."
She went on to address whether the mother has a constitutional right to travel. She found that there is such a right, but it must be balanced against the right of the biological father to help raise his child. Then, after a wholly unimpressive balancing act, Rice and the court concluded the father's rights had to give way.
In reaching this conclusion, the court ignored the law and policy in some other states, including Texas, where the courts have said that the right of the mother to travel is not restricted in these situations. What is limited, and properly so, is the right of the mother to take the child, against the wishes of the father, to another state.
Colorado has obviously strayed from the notion that a mother wishing to move to another state has to demonstrate the move is in the best interests of the child.
Under the cases announced last week, the new standard is the best interests of the mother.
Still, as Father's Day approaches, it might be useful to note that 40 percent of America's children now live in homes without their real fathers. It should also be plain that last week's decisions will only make matters worse.
Al Knight of Fairplay is a former member of The Post's editorial-page staff. His columns appear on Wednesday.