There are special rules for modifying existing Court permanent orders for child support, decision-making authority and parenting time. Most people identify changing any or all of these items as a custody modification or child support modification. The Courts in Colorado have a legal term for what most people call custody. The Courts call custody "Allocation of Parental Responsibilities". It is called APR for an abbreviation. In any custody case, one will hear the term Allocation of Parental Responsibilities again and again. It is really a two part concept. Part one is how to allocate parenting time to each parent and the second part is how to allocate decision-making authority regarding the children. Any change to a current court order for Allocation of Parental Responsibilities a parent must file a motion with the Court called a Motion to Modify Allocation of Parental Responsibilities. The remainder of this article reviews the issues unique to each type of modification. Click on the link below for each subject:
In the original custody case or divorce, Colorado courts decide custody issues by the standard of "the best interests of the child". This standard is detailed in Colorado Revised Statutes 14-10-124. Exactly what "the best interests of the child" means is an intricate definition. When a parent seeks to modify an existing parenting time order or custody order, a different statute controls when the Court can authorize such a change. Colorado Revised Statutes 14-10-129 controls modification of parenting time, whether it be a small change to add an extra day a week or a huge change to move the child out of state and away from one of the parents. When a parent wants to modify a current parenting time order, it is wise to consult with a family law attorney to discuss their unique situation and how to present their case to the Court in a way the Court will be see the need for change and importantly, be able to make the change.
In considering a motion to modify parenting time, the Court will still look at the factors of 14-10-124, best interests of the child, but it must first look at the factors listed in 14-10-129 before being able to authorize a change. The Court cannot do whatever it wants and has to follow the limited powers given to it by the relevant statutes. Colorado Revised Statutes 14-10-129 provides the details on when the Court can make such a change and what evidence must be presented to allow the court to change the parenting time schedule. In some circumstances, the Court will be unable to order the change in parenting time requested due to the situation not meeting the requirements of 14-10-129. There are many factors at issue in 14-10-129. The factors most commonly involved in a motion to modify parenting time are a child has been integrated in to the family of one parent with the consent/non-objection of the other parent, one parent wants to move the child to a new residence that is so far away that the move will change the geographic ties between the child and the other parent, a danger to the physical health of the child from being with one parent, and being with one parent significantly impairs the child's emotional development. In easier to understand terms, the three main factors are (1) the parents have not followed the original parent time order and now one parent wants to make the actual schedule they have been following an order of the court, (2) a parent is moving to a new home and the distance they are moving is much further away than the current distance between the parents' homes and (3) one parent is engaged in some behavior to endanger the child when with that parent or the parent is failing to act appropriately as a parent and such failure is a danger to the child. Many motions to modify parenting time are due to substance abuse problems of one parent.
The standard that must be met for 14-10-129 is more involved than the best interests standard for an initial decision on parenting time as listed in 14-10-124. There is a difference in the standard required when going from one parent have more time than the other parent to a 50-50 schedule versus a modification of parenting time where the parent with less time than the other changes to become the parent with more time than the other parent. Typically, the change to a 50-50 parenting time schedule is decided using just the best interests standard of 14-10-124. When the modification will change the parent with whom the child spends the majority of the time, the standard is higher to justify such a change and one party generally must show evidence that the change is necessary to prevent endangerment to the child's physical health or emotional development. This endangerment standard does not apply to a relocation situation where one parent wants to move the child out of state or move across the state a distance that substantially changes the geographic ties of the child and the other parent. Relocation of a child is specifically addressed in this website in its own section.
An additional consideration for motions to modify parenting time is that such motions cannot be brought again and again before the court. For a majority of situations, there is a two year wait period before a similar motion can be filed once the first is decided by the Court. In other special circumstances such as where moving the child out of state is an issue or there is a danger to a child, the two year wait period does not apply. Deciding when and if to file a motion to modify parenting time is a decision that should be made with the aid of a competent family law attorney.
If the Court finds a change to parenting time is appropriate based upon a review of the applicable factors of 14-10-129, the court than looks to Colorado Revised Statutes 14-10-124, the best interest standard, to decide if to make a change and if a change is to be made what the change will be to the parenting time schedule. 14-10-124 has numerous factors, which include: 1) the wishes of the parents, 2) the wishes of the child, 3) relationship the child has with each parent, siblings or other significant persons, 4) the child's adjustment to home, school and community, 5) the mental and physical health of all individuals involved, 6) the ability of each parent to encourage a healthy relationship with the other parent, 7) the past pattern of involvement of the parties with the child, 8) the geographic proximity of the parents, 9) if a parent has committed child abuse, 10) if a parent has committed spouse abuse, and 11) the ability of each parent to place the needs of the child ahead of their own needs. 12) And some additional situation specific factors... For a modification of parenting time, all of these factors will be considered after the first determination of the Court on the relevant factors of 14-10-129.
Colorado Courts are not to favor one sex over the other when deciding on a parenting time schedule even in circumstances of a modification of parenting time. The Courts really do look at what is in the best interests of the children and discount the individual wishes of each parent. It has been the experience of Fellows & Quenzer that the Courts seem to want to craft an equal 50-50 type of parenting time schedule if possible. This philosophy can be a helpful for parents trying to modify and existing parent time schedule from one where one parent has more time than the other parent to a schedule where each parent has equal time.
The Court will modify a parent time plan to give one parent more time than another parent when required for the safety of the children or if the geographic distance between the parents is too far to allow for a 50-50 parenting time schedule. Too far apart can be as small as more than 20 minutes away. In considering why to not have a 50-50 schedule, the age of the child can be a significant consideration. For a young child, one under the age of five sometimes a 50-50 schedule does not work well. An equal schedule can work well for a young child, it just depends on the child and other factors such as how far apart do the parents live and the parents' work schedules. Working at night is a large factor not in the favor of the parent who works at night. Careful planning has to go into proposing a parenting plan for a parent who has to work at night on a consistent basis. For young children a schedule with frequent contact with each parent is preferred. That means that a plan where a two year old spends one week with Dad and the next week with Mom is likely not going to be a plan the Court devises at trial. A plan for a young child usually has a few days with one parent and then a few with the other parent, visits of at least once a week for each parent. A common 50-50 type of parenting plan ordered by the Colorado courts for children of all ages is called a "5-2-2-5". It breaks up the parenting time equally over a two week block of time. One parent will typically have each Monday and Tuesday every week and the other parent will have each Wednesday and Thursday every week. The parents will then alternate the weekend from Friday thru Sunday every other week. So with a 5-2-2-5, the Monday parent will have the child two days in week one just Monday and Tuesday and the next week have the child for five days in a row from Friday through Tuesday. The Wednesday parent will have the child five days in a row week one, Wednesday through Sunday and then just two days the next week, Wednesday and Thursday. This seems to be a good schedule for most children as they get to feel at home in each parents house and are not going constantly back and forth between the homes of the parents. A plan where the children alternate every other night at the parents' houses is usually frowned on as that creates a lot of transitions for the children and they never get to settle into either home, feeling like they live out of a suitcase. Everyone's situation is unique and what is best for one family is not necessarily in the best interests of the children of another family. A competent family law attorney is a great resource to help a parent devise a parenting time schedule that works well for the children and one that the Court will look favorably upon with a motion to modify parenting time.
Colorado Courts prefer for both parents to share in making major decisions for their children. Major decisions to be made are typically found in the areas of Health, Education and Religion. Once the Court has decided on how to allocate decision-making responsibility to one or both parents, it can be changed in the future by one party filing a motion to modify decision-making authority. The standard of evidence required for the court to order a modification is quite high and is not a simple best interests standard of 14-10-124. Colorado Revised Statutes 14-10-131 provides the details on when the Court can make such a change and what evidence must be presented to allow the court to change sole decision making from one parent to the other or to change from joint authority to just one parent having sole decision-making authority. The statute lists a few factors that can trigger such a change. In summary the five factors are: 1) parties agree to the change, 2) the child has integrated into the family of one parent with the consent of the other parent and such situation warrants a change, 3) parenting time has been significantly modified by court order, 4) one parent consistently consented to the other party making individual decisions and 5) the change is necessary to prevent endangerment to the child's physical health or emotional development.
To modify decision-making authority, the Court must first find that one of the factors in 14-10-131 applies and then look at 14-10-124 to decide if a change is to be made. Colorado Revised Statutes 14-10-124 details the concept of allocation of decision-making responsibility. A parent can request sole decision-making authority where they choose what happens and the other parent is not included in the final decision. For sole decision-making authority to be ordered by the Court, the parties have to agree to it or one parent has to be preferable over the other based upon five different factors such as 1) past pattern of involvement in decisions, 2) evidence of parties ability to cooperate and make decisions jointly or evidence of the lack thereof, 3) whether joint decision making will promote more frequent contact between child and parent, 4) whether one parent has committed child abuse or neglect and 5) whether one parent has committed domestic violence, been a perpetrator of spouse abuse. For child abuse, the Court cannot order joint decision-making over the object of the other party. The court is to pick the non-abusive parent to have the sole power of decision-making. For spouse abuse, the Court cannot order joint decision-making over the object of the other party unless it finds the parties can make joint decisions in a safe and non-abusive manner without physical confrontation. Typically for spouse abuse situations, the Court awards sole decision-making authority to the spouse who was the victim of the spouse abuse.
In practice, the one area where major decision-making authority often seems to be of great importance is education and who gets to decide where the children go to school. If the children have already started a school, typically the Court wants the children to have some consistency and remain in such school for elementary school, the feeder middle school and feeder high school. For young children who have yet to start Kindergarten, the decision on where they go to school can have a big impact on the parents. Unless both parents continue to live in the same neighborhood or live close enough to have the same neighborhood school, one parent is going to have to drive their child to school when they have parenting time during the week during the school year. If the parents do not live close together and the distance is significant such as more than a twenty minute drive, the school choice may cause the distant parent to lose parenting time due to the logistics. School choice can be a hotly contested issue in the initial court case or a few years later when a child starts school. In a divorce or break up of a couple, where the parties move is an issue to be given thoughtful consideration in regards to where the children go to school, whether the children stay at their same school, change schools or where to actually start Kindergarten.
In Colorado, child support is based upon a mathematical formula as detailed in Colorado Revised Statutes 14-10-115. This statute controls for modification of child support as well. An original child support order can be modified at any time if changes in economic factors for one party or both parties will result in a change of more than 10% from the original child support amount. Changes can be a raise in income, the loss of a job, a change in day care costs, a change in health insurance costs, the receipt of an inheritance, among many other possible financial changes. Even when one parent is unemployed, a child support order will be issued and the court may impose the old income on the unemployed parent for the purpose of calculating child support. One cannot quit their job and take a lower paying job for the purpose of lowering their child support obligation. Another cause for change of child support is if the parenting time schedule changes. When a motion for child support is granted by the court the effective date can go back in time to when the motion to modify child support was filed. If the change is 10% or less, there will be no cane and the old child support order remains in place.
For the mathematical formula to calculate child support, the typical factors with the most impact on the formula are the number of overnight visits each year for each parent, each parent's gross monthly income, daycare costs and the health insurance cost for each child. The Court can decide to not use the mathematical formula number, but it is not the norm for the court to ignore the formula. The court has to make specific findings that the formula number is unjust and to deviate from the formula number is not a shirk of the responsibility of either parent. There are several sets of appropriate circumstances where a deviation can be appropriate. It is wise to speak with an attorney to see if your unique situation would justify a lower than normal child support amount.
One can ask the Court for the other side to pay for their attorney fees for any motion to modify a custody order or child support order.. How the Courts are to consider awarding attorney fees to one party from the other party is primarily governed by Colorado Revised Statutes 14-10-119. It is a very short statute consisting of two sentences that leaves great discretion to the Judge. Colorado intends the award of attorney fees to level the playing field so that both parties are able to have an attorney represent them. The Court looks at the financial resources of each party and if one side has significantly larger resources available to them than the other party, an award of attorney fees can be made. This is an area where rulings can differ from Judge to Judge under similar fact circumstances. This is a statute that can provide a person with limited financial resources the ability to hire a competent attorney to defend their rights in a case where otherwise such a person would be unable to afford an attorney for their case.