As a result of child custody modification in a dissolution of marriage case or a parental responsibilities (“custody”) case, there are often changes in the parties’ circumstances that render the parenting plan unworkable. Such changes may include such things as the child(ren) enrolling in school, changes in job schedules or locations, and relocation of the parties. When these changes occur, often this will necessitate a review of the current parenting plan and, possibly, changes thereto.
There are several ways to make needed changes. Obviously, if the parties can amicably agree to modify the terms of the parenting plan to accommodate changes in circumstances, this will be the most cost effective method. Remember, however, that any agreed upon changes should be reduced to writing and filed with the court so the modifications are enforceable.
If the parties cannot agree on the necessary modifications of the parenting plan, they may want to consider mediating the unresolved issues (in fact, many separation agreements or permanent orders require the parties to participate in mediation if they cannot agree to issues related to parenting). Such mediation, when successful, is a much more cost-effective way of resolving the disputes than hiring attorneys for a court battle.
If the parties cannot agree to the needed changes and mediation is either not an option or unsuccessful, the parties may seek court intervention to resolve the disputed issues by filing a motion to modify the current parenting plan. This, however, can become very expensive for the parties.
The original parenting plan will be established by the “best interests of the child” standard. The standards of review for modification of the original orders may be the same or different, depending on the modifications being sought.
Modification of Parenting Time –
C.R.S. § 14-10-129
For instance, where a party with whom the minor child resides a majority of the time (formerly known as the “residential custodian”) is seeking to relocate with the child to a residence that substantially changes the geographic ties between the child and the other party, the court will utilize the best interests standard. Essentially, the test is whether the benefits to the child of the requested change outweigh the detriment to the child resulting from the change in ties to the other party.
However, if a party seeks a modification of parenting time which substantially changes the parenting time as well as changes the party with whom the child resides a majority of the time, the court must preserve the prior parenting plan unless: (1) the parties agree to the modification; (2) the child has been integrated into the family of the moving party with the consent of the other party; (3) the moving party seeks to relocate and the Court finds that such relocation is in the best interest of the minor child; 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 in environment is outweighed by the advantage of a change to the child (this is a very difficult standard to meet).
Modification of Custody or Decision-Making Responsibility –
C.R.S. § 14-10-131
Where a party seeks to change custody or decision-making responsibility, the court cannot modify the permanent orders unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or the child’s custodian or party to whom decision-making responsibility was allocated and that a modification is necessary to serve the best interests of the child.
In applying these standards, the court must retain the prior allocation of parental responsibility unless: (1) the parties agree to the modification; (2) the child has been integrated into the family of the moving party with the consent of the other party and such situation warrants a change in the allocation of decision-making responsibility; (3) there has been a modification of parenting time pursuant to C.R.S. § 14-10-129 that warrants a modification of decision-making as well; (4) a party has consistently consented to the moving party making individual decisions for the child which the other party was to make individually or the parties were to make mutually; or (5) the current decision-making allocation 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.
As can be seen above, modification of an existing parenting plan may be difficult given the applicable standards, particularly when the standard of review is endangerment. This is why it is so important when establishing the original parenting plan to attempt to address any foreseeable changes in circumstances and include them in the original parenting plan.
If a modification of an existing parenting plan is necessary, it would be advisable to attempt a mutual resolution of the issues between the parties and, if necessary, seek the assistance of a mediator. This will drastically reduce the costs to the parties which can be substantial should the parties need to hire counsel and proceed to court for a resolution. If you wish, an attorney can be involved to draft the agreement you reach and advise you as to its consequences. This is probably wise, and costs substantially less than proceeding to full-blown litigation.
If a party is unable to obtain the other party’s agreement to a needed modification of the existing parenting plan, it would be wise for that person to seek the advice of a family law attorney. The attorney can then advise the party whether a motion to modify the parenting plan would be supportable, what the chances of success are and provide an estimate of the costs involved in proceeding to court.