Marriage of Fry - Relocation Order Affirmed

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April 9, 2026 Get Citation Alerts Download PDF Add Note

Marriage of Fry

Colorado Court of Appeals

• Citations: None known
• Docket Number: 25CA0749

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

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Combined Opinion

25CA0749 Marriage of Fry 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0749
El Paso County District Court No. 21DR32654
Honorable Hilary Gurney, Judge

In re the Marriage of

Nicholas Robery Fry,

Appellant,

and

Vanessa Marie Fry,

Appellee.

ORDER AFFIRMED

Division IV
Opinion by JUDGE FREYRE
Brown and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 9, 2026

Price Family Law, LLC, Trista Price, Denver, Colorado, for Appellant

Helland & Hurwitz Attorneys at Law, Alexander Masterson, Colorado Springs,
Colorado, for Appellee
¶1 In this post-dissolution of marriage case between Nicholas

Robert Fry (father) and Vanessa Marie Fry (mother), father appeals

the district court’s order granting mother’s motion to relocate to

New York with their two children. We affirm.

I. Relevant Facts

¶2 In 2023, the court dissolved the marriage and ordered the

parents to exercise equal parenting time.

¶3 Mother later remarried. She then filed a motion to modify

parenting time, seeking to relocate with the children to New York.

Mother explained that her husband, who was serving in the

military, had been transferred to New York, and she believed that it

was in the children’s best interests to live primarily with her and

her husband in New York. Father objected and asked that, if

mother moved, the court order the children to live primarily with

him in Colorado.

¶4 After a hearing, the court granted mother’s motion to relocate.

The court acknowledged that mother said she would remain in

Colorado if the court denied her motion to relocate. But the court

clarified that it could not “prohibit [m]other from her right to travel

and her ability to relocate.” The court explained that it must

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consider her motion with the understanding that she was moving to

New York and then determine whether it was in the children’s best

interests to move with mother to New York or to stay with father in

Colorado.

¶5 The court made the following findings:

• The children were five and seven years old.

• Each parent wanted to have the children reside primarily

with them during the school year, allowing the other

parent to exercise parenting time during school breaks.

• Both parents had strong relationships with the children

and were good parents.

• The children had a “strong relationship” with mother’s

husband.

• The children had “some substantial relationships” with

“others” in Colorado, noting father’s grandmother,

father’s new wife, the children’s stepsister, and the

children’s step-grandfather.

• Mother made “substantial efforts to encourage the

children to share . . . love, affection, and contact” with

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father and his family, and she was able to place the

children’s needs ahead of her own.

• Father exhibited a pattern of coercive control and

domestic violence that sought to harm or punish mother.

• Father’s conduct “raised concerns” about his ability to

encourage the sharing of love, affection, and contact

between the children and mother, and he was “unable to

fully place” the children’s needs above his own.

• Both parents were “primary caregivers” to the children.

• In New York, mother would enjoy increased financial

stability and family support from her husband, which

together would increase her “happiness” and provide the

children “a more stable home life.”

• The children had additional educational opportunities in

New York.

• No extended family members lived in New York.

• The majority of the children’s extended family lived in

Arizona, and the children would need to travel long

distances to visit their family whether they lived in

Colorado or New York.

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¶6 After considering these and other relevant circumstances, the

court determined that it was in the children’s best interests to

relocate with mother.

II. Discussion

¶7 Father contends that the district court’s order should be

reversed. He argues that the court erred by (1) improperly

importing into this post-permanent orders proceeding the legal

standard applicable to a parent’s pre-permanent orders request to

relocate with their children; (2) refusing to consider mother’s

admission that she would remain in Colorado if the court denied

her relocation request; and (3) weighing the resulting benefits from

mother’s relocation as though she was the children’s primary

caregiver. We reject his contentions.

A. Standard of Review

¶8 The district court has broad discretion when deciding a

parent’s request to relocate and modify parenting time. See In re

Marriage of Ciesluk, 113 P.3d 135, 148 (Colo. 2005); In re Parental

Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 13. We

exercise every presumption in favor of upholding the court’s

decision and will not disturb it absent a showing that the court

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acted in a manifestly arbitrary, unreasonable, or unfair manner, or

that the court misapplied the law. S.Z.S., ¶ 13. We review de novo

whether the court applied the proper legal standard. In re Marriage

of Badawiyeh, 2023 COA 4, ¶ 10.

B. Governing Law on Relocation

¶9 A parent’s request to relocate with their children presents the

court with a unique challenge. Ciesluk, 113 P.3d at 142. The court

must balance a parent’s constitutional right to travel, the parents’

fundamental right to parent their children, and the children’s best

interests. Id.

¶ 10 When a parent states their intent to relocate before permanent

orders are entered, the court cannot issue an allocation of parenting

time that orders a parent to live in a specific location. Spahmer v.

Gullette, 113 P.3d 158, 164 (Colo. 2005); In re Marriage of Morgan,

2018 COA 116M, ¶ 6. The court must accept the location where

the parents intend to live and allocate parenting time in the

children’s best interests based on the parents’ intended locations.

Spahmer, 113 P.3d at 164; Morgan, ¶ 6. In doing so, the court

considers all relevant factors, including those listed in section

14-10-124(1.5)(a), C.R.S 2025. Spahmer, 113 P.3d at 162. When

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the court makes this initial determination of parenting time, the

parents stand on equal ground because neither has vested

parenting time rights. Id. at 163.

¶ 11 After the entry of permanent orders, a court determining a

parent’s request to relocate must engage in a more robust

evaluation, considering additional factors that account for the

parenting rights established by the existing orders. See Ciesluk,

113 P.3d at 140. The court therefore must consider not only the

best interests factors in section 14-10-124(1.5)(a) but also the

factors in section 14-10-129(2)(c), C.R.S. 2025. Ciesluk, 113 P.3d

at 140; In re Marriage of DeZalia, 151 P.3d 647, 648 (Colo. App.

2006); see also Spahmer, 113 P.3d at 163 (“[T]he goal of dissolution

proceedings is to create a stable situation between the new family

units arising out of the divorce, whereas the goal of a modification

proceeding is to maintain this stability, if possible, in the best

interests of the child.”). The court may not presume that the

children are better off or disadvantaged by relocating. Ciesluk, 113

P.3d at 147. It must begin its analysis with each parent on equal

footing and place the burden equally on each of them to persuade

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the court that the relocation will be in or will be contrary to the

children’s best interests. Id. at 148.

¶ 12 Therefore, the parent seeking to relocate must present

evidence about the children’s living conditions in the proposed

relocation and show how the move serves the children’s best

interests. Id. at 147. By contrast, the parent opposing the

relocation must present evidence to show why the proposed

relocation is contrary to the children’s best interests. Id. When

doing so, that parent may choose to (1) contest the relocation in its

totality and seek to become the primary residential parent; or (2)

not contest the relocation but object to the revised parenting plan

proposed by the relocating parent. Id.

C. Accepting Mother’s Intent to Move to New York

¶ 13 Father argues that the district court gave mother an unequal

advantage by applying the “less stringent” standard applicable to a

pre-permanent orders relocation. To get there, he argues that the

court improperly began its analysis by accepting that mother would

be residing in New York. Father thus suggests that while a court

must accept the location in which a parent intends to live when

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considering a pre-permanent orders relocation request, it cannot do

the same for a post-permanent orders relocation. We disagree.

¶ 14 Father relies on Spahmer, in which the supreme court

differentiated between the standards for a pre-permanent orders

relocation and a post-permanent orders relocation. 113 P.3d at

162-64. He highlights that, in Spahmer, the court held that “in the

initial determination of parental responsibilities, the plain language

of subsection 14-10-124(1.5) indicates that a trial court must

accept the location in which each parent intends to live, and

allocate parental responsibilities, including parenting time,

accordingly.” Id. at 164. Continuing, he points out that the

supreme court said that “[h]ad the General Assembly wanted the

trial courts to have the authority to dictate the domicile of the

parents, then it would have instructed courts to engage in an

analysis akin to that set forth in subsection 14-10-129(2)(c).” Id. at

163-64.

¶ 15 However, Spahmer did not say that a district court may not

accept the location a parent intends to live in when determining a

post-permanent orders relocation. Rather, the supreme court

highlighted that when the court makes an initial parenting time

8
determination “each party is as likely as the other to become the

majority time parent based on a best interests analysis.” Id. at 163.

It then observed that, in post-permanent orders proceedings, “the

parties are on unequal grounds with respect to parental

responsibilities,” “[o]ne party has already been named the majority

time parent,” and the “court has already rendered judgment as to

issues such as parenting time and decision-making

responsibilities.” Id. (emphasis added).

¶ 16 Here, mother and father shared equal parenting time with the

children. Therefore, neither had been designated a majority time

parent. As a result, mother’s request to relocate with the children

and modify the equal allocation of parenting time resembled an

initial allocation of parenting time. See DeZalia, 151 P.3d at

649-50; In re Marriage of Garst, 955 P.2d 1056, 1060 (Colo. App.

1998); see also In re Marriage of Stewart, 43 P.3d 740, 742 (Colo.

App. 2002) (“[I]n instances where the parties share equal parenting

responsibilities, any subsequent modification of that arrangement is

governed by the best interests standard.”). The parents shared the

legal and physical care of the children, and each of them was as

likely as the other to become the majority time parent based on the

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court’s analysis of the children’s best interests. See Spahmer, 113

P.3d at 163; DeZalia, 151 P.3d at 649-50; Garst, 955 P.2d at 1060.

Mother sought to become the majority time parent in New York and

father sought to become the majority time parent in Colorado. See

§ 14-10-124(1.5)(a)(I) (“In determining the best interests of the child

for purposes of parenting time the court shall consider all relevant

factors, including . . . [t]he wishes of the child’s parents as to

parenting time.”). Thus, the court’s decision was akin to a

pre-permanent orders relocation request to the extent that the court

could accept the location where mother intended to live when

considering her motion. See Spahmer, 113 P.3d at 163; DeZalia,

151 P.3d at 649-50; Garst, 955 P.2d at 1060.

¶ 17 But the court also addressed the factors identified in section

14-10-129(2)(c). The district court recognized that Ciesluk and the

post-permanent orders standard applied to its analysis. It

understood that it had to accept that mother intended to move to

New York to properly consider her request to relocate and determine

the children’s best interests. The court then thoroughly addressed

and made findings on the statutory best interests factors under

section 14-10-124(1.5)(a) and the additional factors in section

10
14-10-129(2)(c). The court weighed those factors and the relevant

circumstances, and it determined, with record support, that

granting mother’s request to relocate served the children’s best

interests. See Ciesluk, 113 P.3d at 147 (recognizing that the district

court weighs the statutory factors when making its best interests

determination); see also In re Marriage of Newell, 192 P.3d 529, 534

(Colo. App. 2008) (“Because the evidence was conflicting as to which

of the parenting time plans under consideration would best serve

the child’s need[s] . . . , we defer to the [court’s] choice.”).

¶ 18 We therefore do not agree with father that the court

misapplied the law by accepting mother’s intent to move to New

York when considering her motion to relocate.

D. Mother’s Admission Concerning Remaining in Colorado

¶ 19 Father next argues that the district court erred by “refusing to

consider” mother’s admission that she would remain in Colorado if

the court denied her request to relocate. We disagree.

¶ 20 The court noted that mother would not leave Colorado without

the children, but as discussed above, the court correctly determined

that it must evaluate mother’s motion to relocate with the

understanding that she intended to move to New York. See

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Spahmer, 113 P.3d at 163; DeZalia, 151 P.3d at 649-50; Garst, 955

P.2d at 1060. It further explained that in considering mother’s

request it was not deciding whether it was best for the children if

mother stayed in Colorado (and continued the equal parenting time

plan) or moved to New York. Rather, it needed to decide whether it

was in the children’s best interests to move with mother to New

York or stay with father in Colorado. See Ciesluk, 113 P.3d at

147-48.

¶ 21 The court did not err by declining to consider mother’s

admission that she would remain in Colorado if the court denied

her request to relocate. Such a consideration was necessary only if

after the court completed its analysis, it denied mother’s motion to

relocate. See id. at 148. Because the court granted mother’s

request, it did not need to consider her admission.

E. Considering the Benefits to Mother from the Relocation

¶ 22 Father also contends that the district court erred by weighing

in mother’s favor the indirect benefits to the children related to

mother’s improved circumstances because of the relocation. We are

unpersuaded.

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¶ 23 The factors in section 14-10-129(2)(c) include a court’s

consideration of “[a]ny advantages of the child remaining with the

primary caregiver.” § 14-10-129(2)(c)(VI). When evaluating this

factor, the court may consider the “indirect benefits” to the children

as a result of the direct benefits enjoyed by a parent, including

increased financial stability, family support, and happiness.

Ciesluk, 113 P.3d at 148.

¶ 24 The court found that mother’s relocation would financially

benefit the family, observing that her job in New York would pay her

approximately $20,000 more per year, she would enjoy a lower cost

of living, and she would no longer need to maintain her two

separate homes — one in Colorado and one in New York. It also

found that mother would have “more family support” in New York

with her husband. The court determined that these circumstances

“increase [m]other’s happiness” and gave the family “a more stable

home life,” benefiting the children.

¶ 25 Father suggests that the court’s findings were improper

because, under section 14-10-129(2)(c)(VI), the relevancy of these

circumstances was tied to mother being the children’s “primary

caregiver,” which she was not. The parents shared equal parenting

13
time, and thus neither was a true primary caregiver for the

children. See Ciesluk, 113 P.3d at 148 (recognizing that the

majority time parent was the primary caregiver). But section

14-10-129(2)(c)(VI) was not the only factor relevant to the court’s

findings. Indeed, the court also considers under section

14-10-129(2)(c), “[t]he reasons why the party wishes to relocate with

the child[ren]” and “[t]he anticipated impact of the move on the

child[ren].” § 14-10-129(2)(c)(I), (VII). The court found, with record

support, that the reasons for mother’s relocation would not only

benefit mother but also indirectly benefit the children. The court’s

consideration of those circumstances was not limited to a primary

caregiver under section 14-10-129(2)(c)(VI). We thus are not

persuaded that the court abused its discretion by weighing the

indirect benefits from mother’s relocation along with the other

relevant factors when it granted her motion to relocate. See

Ciesluk, 113 P.3d at 147.

¶ 26 Further, father argues that the court erred by not considering

the indirect benefits related to the children remaining with him in

Colorado. However, he does not identify anything specific in the

record that the court did not address or consider related to his

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circumstances. We presume the court considered all the evidence.

See Collins, ¶ 21. And the court was not required to make specific

findings on every factor. See In re Marriage of Pawelec, 2024 COA

107, ¶ 44. The court made the relevant findings, its ruling provided

a clear understanding of the basis of its decision, and the record

supported that decision. See id. We therefore will not set aside the

court’s order. See S.Z.S., ¶ 28 (declining to reweigh the court’s

resolution of the conflicting evidence when the court’s

determination was supported by the record); In re Marriage of

Thorburn, 2022 COA 80, ¶ 49 (noting that credibility determinations

and the weight, probative force, and sufficiency of the evidence, as

well as the inferences and conclusions to be drawn from the

evidence, are matters within the district court’s sole discretion).

¶ 27 In sum, the court did not abuse its discretion by granting

mother’s motion to relocate with the children.

III. Disposition

¶ 28 The order is affirmed.

JUDGE BROWN and JUDGE SCHUTZ concur.

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