Change is part of life. For better or worse, even the most well-considered arrangements must be updated from time to time, including parenting time. The parenting time order probably made sense at the time of your divorce, but over time it may have become impractical. As parents continue to move on in their separate lives, it may become necessary to modify parenting time.
Colorado law allows parenting time to be modified under certain circumstances if it’s in the best interests of the children. We’ve answered some of the most frequently asked questions our clients have had about parenting time modifications.
Colorado law anticipates periodic modifications. Situations change, and so could the circumstances affecting what’s in the child’s best interests. The current parenting plan simply might not be practical anymore if your employment, finances, or living arrangements have changed.
Any attempt to modify parenting time must meet certain requirements laid out in Colorado Revised Statute 14-10-129. The legal burden you need to meet those requirements depends on the magnitude of your requested modification.
For example, one or both parents seek more equal parenting time, or a parent needs to modify visitation due to changes in their circumstances, or a conflict that has arisen. In any case, courts consider a number of factors to determine whether the requested modification is appropriate, including:
- the parent’s wishes
- the child’s relationship with parents and other individuals who impact the child’s best interests, such as siblings
- all parties’ mental and physical well-being
- the child’s adjustment to home and family life
- the geographic distance separating the parent’s homes
- how well the parents prioritize their child’s needs
- each parent’s ability to encourage the child’s relationship with the co-parent
- the past involvement of the parties and how they developed a system of values, commitment, and support
- the child’s wishes, if he or she is mature enough to communicate reasoned choices regarding parenting time
However, not all modification requests are minor. When one parent seeks an adjustment that would change the court-designated primary parent, they must meet a higher standard. The higher standard must be proven in addition to still showing the request is in the minor child’s best interest, unless a party can show one or more of the following:
- child is integrated into the moving party’s family with the consent of the other party
- majority or primary parent seeks to relocate with the minor children
- a child’s present environment is dangerous to their physical health or emotional development.
Barring ample demonstration of any of these four things, the legal presumption is that the current parenting plan and orders will remain in effect.
There are two ways. You can either agree to the modification and make sure all arrangements you and your ex-spouse have agreed to are properly entered in court and approved by the judge. Or, if you don’t want the modification, you must explain your position at a contested hearing.
Agreeing to the Modification
After you’ve reached a suitable arrangement with the other parent to change visitation, you should still file it in court so a judge can make sure the child’s best interests are protected. If the arrangement includes a modification of child support payments, other requirements will apply.
Contesting the Modification
When parents cannot agree, the one seeking modification must file an official request for the court to consider. That parent must specify the proposed changes to the parenting schedule along with an explanation of why the modification is necessary and is in the child’s best interests. Once the modification request is filed and your resistance is noted, the court will set a date for a contested hearing. Both parents will have an opportunity to present arguments and evidence before the judge makes a decision.
It’s not always as simple as filling out forms and filing them in court. Modification matters can get pretty complicated, and there are many nuances in the statute that need to be taken into consideration, depending on the type of requested change. Often, even when parents think they agree to modify, they find out they didn’t quite agree on everything. This can happen if parents fail to consider all of the modification’s aspects or when one parent concedes to the change to avoid dealing with their ex.
You can, but you should not.
If you and the other parent come to a mutual agreement to modify parenting time or custody, you can probably implement the plan without filing the agreements with the courts. However, the other parent is under no legal obligation to honor the modified agreement once they decide it’s no longer beneficial to them. Also, a court cannot enforce a modification it did not approve.
Coming to an agreement, and filing that agreement, does allow you to avoid a hearing, and usually allows you to avoid significant interference by the court with your agreements. So, you can avoid “going to court” in the sense of having to defend your positions; but the document should still be formalized.
Colorado recognizes that the military deployment of one parent is a situation requiring special consideration. This is why Colorado adopted the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) in 2013. The act protects military parents when they are deployed.
The Act defines a deployment as mobilization or movement for a period of 90 days to 18 months in a location where family members are not authorized. This could be a combat zone or an unaccompanied tour. A shorter movement is too temporary to qualify, and a longer movement is considered to be a permanent change.
If a custody/parenting time order has been issued, the deploying parent must advise the other parent of the upcoming deployment within 12 days of receiving orders, unless military duties prevent such notice. The parents must then exchange proposed parenting plans as soon as possible. If they reach an agreement, the parties can enter the agreement as a stipulation and ask the Court to issue it as an order.
Proposed Parenting Plans
The UDPCVA sets forth parenting plan requirements. These are more detailed than a standard Colorado parenting plan because of the unique military aspects. The plan must:
- be in writing;
- be signed by both parties and any non-parent to whom custody is granted;
- identify deployment location, duration, and conditions;
- specify caretaking responsibility;
- specify decision-making authority;
- specify any grant of limited contact to a nonparent, such as a grandparent;
- provide a method for dispute resolution;
- specify frequency, duration, and means by which the deploying parent will have contact with the child;
- specify contact between the deploying parent and child when the deploying parent is not on duty;
- acknowledge that child support can only be modified by a court order;
- provide for termination of the temporary plan after deployment return; and
- specify who will file the agreement with the court.
If the parties can not agree, the court decides after both parties submit separate proposed parenting plans. A court may allow a person who is not a parent to exercise parenting time on behalf of a deployed parent, such as a grandparent or stepparent.
The statute indicates that upon return to Colorado, and filing the notice with the court, parenting time and decision-making resume to the original parenting plan.
Overseas deployments cannot be used against military members in future legal proceedings. One should keep in mind that statutory standards for modifications of legal custody/decision-making still apply.
You do not have the legal right to make a unilateral decision to move out of state with your children even if you have primary custody or sole decision-making authority. You cannot geographically limit the other parent’s visitation unless you first obtain permission from the other parent or by order of the court.
Relocation can be difficult if the other parent fights it. If that’s the case, the court will decide whether authorizing such a relocation would serve the child’s best interests, as mandated by Colorado Revised Statute 14-10-129, which lays out the criteria courts must consider. Relocation requests are difficult if both parties are good parents and one of them would be unfairly impacted by the move.
The party wishing to relocate with the children must be able to show the court that the relocation is beneficial for the children; not simply convenient for the parent.
Each case is unique, but a court will consider the reason for the move, whether reasonable visitation can be implemented for the other parent, and if the move is in the children’s’ best interest overall.
Colorado law allows emergency motions to restrict parenting time. However, the courts only consider a motion to restrict if the child is in imminent danger of physical or emotional harm during visits with the other parent.
The closer in time the event of concern has occurred, the more likely the imminent requirement.
Courts take motions to restrict seriously, therefore, the parent filing the motion has a high burden of proof. These requests should be filed sparingly and only in situations in which the child is legitimately in danger. Otherwise, you are likely to lose credibility with the court and the chances of your concerns being taken seriously if that were to happen are diminished significantly.
The law does not specify what is dangerous, recent, or imminent. Courts have the discretion to interpret the other parent’s behavior or environment.
Once a motion to restrict parenting time is filed, the court generally reviews it on a priority basis. Once the motion is filed, the other party’s parenting time is immediately restricted. If the court grants the initial restriction, the other party is likely subject to third-party monitoring until a full hearing is held to investigate the matter. The hearing must take place within 14 days of the filing and these motions are given priority on the court’s docket.