Modification of Parenting Time & Custody

custody, parenting, family

Parenting time orders cannot be written in stone - they are always subject to modification if circumstances change. Most modifications require that the parent seeking modification prove the change is in the best interests of the children, but at times the burden of proof is higher, as explained herein.

Modification of Parenting Time

A modification to the parenting schedule which does not change the majority parent requires that the court find the change is in the best interests of the child. C.R.S. 14-10-129(1)(a)(1).

Courts will often order equal parenting time when both parents live in close proximity. What happens if some years after the decree enters one parent believes the children should live with him/her most of the time?

The controlling case on moving from equal to unequal parenting is In re: Marriage of McNamara, 962 P.2d 330 (Colo.App. 1998). The decree gave both parents equal parenting time, and both parents subsequently filed motions seeking “sole custody” (the language used in Colorado until the 1990s), and the trial court ultimately awarded sole custody to the father.

The mother appealed, arguing that removing her equal time effectively removed her as custodial parent, so the father should have had to meet the much tougher endangerment standard. The court of appeals rejected that argument, and held that the C.R.S. 14-10-131(2) “best interests” standard applied. The court's reasoning was that by granting equal parenting time and not designating a custodian, the decree essentially deferred deciding which parent would be the custodial parent. And just as the best interests standard would have applied at the time of the original decree when determining which parent should be the majority parent, so too should that standard apply to a post-decree modification from equal to unequal time.

The decision was reiterated in In re: Marriage of Stewart, 43 P.3d 740 (Colo.App. 2002). There, as in McNamara, the decree named the parents as joint legal and physical custodians, and father subsequently filed a motion seeking majority time.

The trial court applied the endangerment standard, and the court of appeals reversed, holding the standard to change from parents sharing equal time to having one as majority residential parent is “best interests”, not “endangerment”.

Modification from unequal to equal time similarly requires best interests. In In re: Marriage of Newell, 192 P.3d 529 (Colo.App. 2008), the parents originally had minority/majority parenting time, and one parent wanted to modify it to “roughly equal.” The court held that because the change did not change the majority residential parent, it only required meeting the best interests standard, not the tougher endangerment standard.

Modification of Custody

Unlike minor changes or “tweaks” to the parenting schedule, a parent seeking to change the majority parent (i.e. shift custody from one parent to the other) must go beyond proving the change is in the children’s best interests.

Pursuant to C.R.S. 14-10-129(2), a court shall not modify a prior order which substantially changes parenting time and changes the majority residential parent unless:

  1. The parents agree.
  2. The child has been integrated into the moving party's family with the consent of the other party,
  3. The majority residential parent is seeking to relocate with the children, or
  4. “The child's present environment endangers the child's physical health or significantly impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.” (This is the endangerment standard).

See also In re: Marriage of Francis, 919 P.2d 776 (Colo. 1996), confirming that endangerment is required to change custody from one residence to the other.

2-Year Limitation on Filing

A parent cannot file a motion to modify parenting time which also seeks to change the majority residential parent within two years after a prior motion to modify the majority parent has been ruled on, absent endangerment. C.R.S. 14-10-129(1.5).

However the way the statute is worded, there is no barrier to filing to change within two years of an initial decree - the two-year rule only bars filing a motion within two years of a prior motion being ruled on. In re: Interest of F.A.G., 148 P.3d 375 (Colo.App. 2006).

Modification of Decision-Making

Under C.R.S. 14-10-131, a court shall not modify decision-making responsibility absent a change in circumstances making the modification necessary to serve the best interests of the child. The standard for modifying decision-making responsibility is similar to modifying the majority parent - the established allocation of decision-making responsibility should be retained unless:

  1. The parents agree,
  2. The child has been integrated into the requesting party's family with the consent of the other party, and the integration warrants the change,
  3. There was a modification of parenting time which justifies the change,
  4. One party has consistently allowed the other to make unilateral decisions for the child, or
  5. The child is endangered by the current allocation of decision-making responsibility, and the advantage of changing residence outweighs any harm such a change would cause.

How can joint decision-making endanger a child? In one example, In re: Marriage of Newell, 192 P.3d 529 (Colo.App. 2008), the father did not support the mother’s decisions regarding the evaluation and treatment of the child, and his opposition was vocal enough to cause third parties such as school officials to be reluctant to provide services. Experts testified that the child needed more evaluation and treatment, which the father was blocking. This was held to be endangerment.

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