Children changing custody from one parent to the other.

Modification of Custody If In Child’s Best Interests

With parenting, nothing is written in stone. In Colorado, a court can order child custody modifications (changes in parenting time or decision-making) when it is in the child’s best interests (although a change in primary residential parent requires a higher standard than best interests). And a parenting plan may not prohibit a parent from filing a motion seeking a modification of child custody. (Note – while Colorado replaced terms like “child custody” and “visitation” back in the 1990s with “parenting time”, as most parents still think of custody, this blog post uses them interchangeably).

For a complete discussion of parenting modifications, see our article Modification of Parenting Time & Custody in the Colorado Family Law Guide. This post does not address when parenting may be modified, but rather, what happens once a parent files a motion seeking to modify parenting time? A new decision from the Colorado Court of Appeals answers that question – the judge must set the matter for a hearing.

No Summary Denial of Custody Modification

Parenting Plan First Right of Refusal Over Stepparents

In Short,1In re: Marriage of Short (Colo.App. 2020) (Unpublished decision). the parties’ 2013 parenting plan had a first right of refusal provision providing that when a parent who was not available to watch the children during his/her time was unavailable, the other parent had priority over third parties, other than immediate family members. Notably, for purposes of the motion and appeal, the parenting plan provided that “a step-parent is not considered an immediate family member of the children.”

(For what it’s worth, first right of refusal provisions have largely fallen into disfavor, especially since the Court of Appeals upheld the trial court overturning one in DePalma,2In re: Marriage of DePalma, 176 P.3d 829 (Colo.App. 2007). holding that a fit parent is presumed to be acting in the children’s best interests when determining care arrangements during his/her parenting time. In Short, the parents explicitly agreed to his provision, rather than it being foisted upon them by the court).

There was nothing in the parenting plan that purported to prevent a court from modifying the parenting plan.

Trial Court – No Parenting Plan Modification

The father had subsequently remarried, and five years later he filed a custody modification motion, seeking solely to modify the first right of refusal provision motion to modify the parenting plan, alleging that the children had a “strong relationship” with their stepmother, and it was in their best interests for his wife to care for them during his time when he was unavailable. The father’s motion requested a hearing.

The mother filed a response, objecting to the modification, and denying that the children had a strong relationship with their stepmother. The trial court then denied the father’s motion without a hearing, stating “the parties’ parenting plan specifically contemplated that they might remarry and provided that a stepparent would not be considered ‘immediate family.'” Short.3In re: Marriage of Short, ¶ 4 (Colo.App. 2020) (Unpublished decision).

The father first requested reconsideration, pointing out that not only did he request a hearing, but the trial court denied his motion without even affording him the seven days to reply to the response provided by Colo. R. Civ. P. 121, § 1-15(1)(c). The father then appealed.

Court of Appeals – Yes, Modification of Custody Permissible

The Court of Appeals reversed the trial court, finding that “Due process requires that a party be provided a meaningful opportunity to be heard.” Short.4In re: Marriage of Short, ¶ 9 (Colo.App. 2020) (Unpublished decision).

The fact that the parties’ parenting plan excluded stepparents from the first right of refusal exception does not make it unmodifiable or obviate the need for a child custody modification hearing:

Such terms involving children are modifiable – pursuant to the district court’s continuing jurisdiction over issues involving children – just as any other such provisions of the decree would be.

Short.5In re: Marriage of Short, ¶ 11 (Colo.App. 2020) (Unpublished decision).

As children have the right to have parenting matters determined based upon their best interests, parents cannot prevent a court from modifying parenting time arrangements when the modification of custody would be in the children’s best interests.

The father complied with Colorado’s procedural requirements for a parenting plan modification – his motion was sworn, set forth the facts in support of the modification, and he requested a hearing. And the trial court did not deny his motion based upon a procedural deficiency, but:

The court’s one-paragraph order did not cite the statute, nor did it find that adequate cause for a hearing was not shown. Instead, the order addresses the merits of the father’s motion, relying upon the parties’ 2013 agreement and essentially saying that the agreement cannot be revisited.

Short.6In re: Marriage of Short, ¶ 18 (Colo.App. 2020) (Unpublished decision).

The parents had a factual dispute – whether the children had a strong relationship with their stepmother, and thus, due process requires that the court set a hearing to determine the facts, and then whether those mean a change in parenting would be in the children’s best interests. Short.7In re: Marriage of Short, ¶ 27 (Colo.App. 2020) (Unpublished decision).

It is worth noting that while the Court of Appeals reversed the trial court’s summary denial of the father’s motion, it does not mean that the father actually won. Instead, the case is remanded back to the trial judge (the same one who just denied the motion), directing the court to hold a hearing on whether the change is in the children’s best interests. It’s a procedural victory, but it means the father got his foot in the door to argue for a change.

Trend Towards Child Custody Modification Hearings

Child Custody Modification Hearing

The Short decision was not selected for publication, which is an indication that the Court of Appeals did not consider it significant enough to justify it being legally-binding precedent, but rather a continuation of existing law. However, the Finer8In re: Marriage of Finer, 920 P.2d 325 (Colo.App. 1996). decision primarily relied upon by Short pertained to a relocation of children motion, not a routine parenting time modification. So the decision is more noteworthy in that it reinforces that a custody modification hearing is required is required when a motion is filed, unless on its face the motion is deficient.

Short joins another recent case, Wollert,9In re: Marriage of Wollert, 2020 CO 47.​ where the Colorado Supreme Court held that a hearing is required when a parent files a motion to restrict the other parent’s time, unless the motion lacks the specificity required by the Colorado Rules of Civil Procedure. For a discussion of the Wollert decision, see our recent blog post Court Must Conduct Hearing on Motion to Restrict Parenting.

The takeaway? If a child custody modification motion is verified (i.e. sworn), and contains specific factual allegations which the filing parent claims warrant modification, a parenting plan modification hearing is required – the trial court cannot act as “gatekeeper” and deny such motions.

custody modification

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