Denver Post

al knight

A state senator responds

By Al Knight
Denver Post Columnist
Sunday, July 01, 2001

State Sen. Ken Gordon, D-Denver, wrote last week to complain about one of my earlier columns on a law he sponsored this year. I'd like you to see what he had to say and then offer a response in the hope that the topic will get the attention it deserves:

Your June 20 column, Another blow to marriage,' makes the valid point that it is not good for a child to be deprived of the relationship with one divorced parent because the other decides to leave the state. Your concern that Senate Bill 29 exacerbates the problem is not well-taken because it actually makes it harder for one parent to leave with a child. It is a confusing area, made more so by a court decision, so it is not surprising that you were led astray.

"In In Re Francis, the Colorado Supreme Court held that a parent objecting to his or her former spouse leaving the state with a child had to show that the removal would endanger the child. This was a hard burden and most objecting parents lost. SB 29 put removal into the modification of parenting time statute, which uses the standard 'best interest of the child.' The procedures for modifying parenting time, including a required hearing, attach to the removal situation. You wrote that the moving parent would not have to do anything except give notice to the remaining parent. This is not the case.

"My motivation for carrying this legislation was my own close relationship with my children and empathy for a parent who would be faced with the prospect that their child might be taken from them. I feel, as you do, that children will do better having the active involvement of both dad and mom. I hope that SB 29 will allow more parents to stay involved."

My disagreement with Gordon is not the result of a misunderstanding or a misreading of the law. I believe that Gordon's bill will do far less than he thinks it will to restrict a residential parent from leaving the state to the disadvantage of both the child and the non-residential parent.

The fact is, the Supreme Court made a bad decision in the Francis case. Its most harmful effect was to remove a presumption that had been in Colorado law, namely that it was in the interest of the child to have a continuing close relationship with both parents. The court decreed it should now be presumed that it is in the interest of the child to be with the residential parent. The court effectively said the residential parent (usually the mother, remember) has a right to move and it is presumed the child should go with her. What that means in practice is the best interests of the child are indistinguishable from the best interests of the mother.

Gordon and the legislature could have simply re-established the prior presumption. Instead, they chose to set up another balancing act for the courts. Given a well-heeled father willing to fight the change in location and parenting time, maybe some fathers will prevail. Too many others, however, will see the judicial dance as another opportunity to come in second. The state has, after all, just about reduced family law as it relates to men to a simple admonition: "Send money, honey."

The fact is there are differing interests in these domestic matters that go beyond the sacred best interests of the child" standard. They involve the interests of the mother and the father, among others, and these interests often collide.

Gordon's bill causes the non-residential parent to demonstrate that he counts at all in a scheme where the court is required to consider "any advantage" that may result from the child staying with the residential parent.

Given these rules, my advice to men is the old favorite: "Lotsa luck."

In the interest of fairness, Gordon has the final word:

"We agree that Francis was a bad decision and that fathers are important. SB 29 was an attempt to right the wrong. I believe it is a good one, but life is uncertain. If SB 29 doesnt accomplish our common goal, I may try to get the legislature to adopt your presumption. I will expect a column entitled 'Senator Strikes Blow for Justice.''"

Al Knight (aknight@chaffee.net) is a member of The Denver Post editorial board.

Copyright 2001 The Denver Post.