Child Custody: Changing Primary Residence

By: Sarah T. McCain

With the myriad of potential new client interactions I have engaged in over the last decade, one of the most often asked requests is “I want to change custody.” But what does that really mean? What does it look like? Generally, people are referring to wanting to change the primary residence of their children from the other parent to themselves. Denver child custody lawyers know that from a statutory standpoint, this is a feat easier said than done. To change primary residential custody, circumstances must be just right.

Modifications of parenting time (visitation) and residence in Colorado are covered under Colorado Revised Statute, 14-10-129. Subsection (2) deals with changes in residence of a child. There are specific circumstances under which primary residence can be changed, the easiest of which being the parents agreeing to make the change. If primary residence is changed via agreement it is advisable to memorialize the change via a written stipulation (agreement) filed with the court. That stipulation should set forth specific terms. If you are the parent giving up primary residence you have the opportunity to make sure you get orders as favorable as possible to you tied into your parenting time and perhaps child support. You are making a huge concession giving up your primary residential status and, thus, have a certain degree of bargaining power. If you are the parent who will be taking primary residential control of the child you should ask to put things into a stipulation memorializing the new arrangement. If the other parent resists, don’t push. Get the child into your home first and establish a track record, maybe even a month or two. If by that point the other parent is still unwilling to sign off on an agreement you might start thinking about filing a motion to modify on your own.

The next way to change primary residential custody is by force, by filing a motion to modify the parenting time which also entails the change in primary care. The statutory grounds pursuant to Subsection (2)(d) are that the child’s current environment with the other parent poses a physical or emotional danger to them (more specifically, puts them at risk of “significant impairment to their emotional development). Filing this type of a motion is ultimately going to take a body of evidence strong enough to persuade a judge or child custody expert that the child is suffering in his or her current situation. Some factors that can come into play can include abuse, substance abuse on the part of the parent, poor school performance due to the other parent, medical neglect, educational neglect, or other significant items impacting the child. In some cases, there can be the proverbial “smoking gun,” meaning evidence so irrefutable and strong that the case is easily made for a change. In other cases, there can be a need for significant evidence gathering, court preparation, and working with the child custody expert to prove your case. Your attorney’s skill and a little luck can also be great assets to winning this type of a motion. Also, keep in mind that when there are dangers present, they may be acute or immediate enough that a motion to restrict parenting time is also filed, which can render a temporary change in custody a whole lot quicker. Finally, a motion to change parenting time which also seeks to change primary residence can only be filed every two years (approximately), absent danger.

The third primary way to change custody is a little more methodical and will certainly take time. Logically, the non-residential parent is going to have initially have less than equal visitation with the child. The first step in this process would be to seek a change in parenting time up to 50/50. Presuming that parent prevails and visitation becomes equal, the parties are then at a pure “best interest” standard as relates to modifications. From there, wait a year, maybe two, and then take your shot at becoming the primary custodian. Dealing with that type of litigation is a whole different issue, for a different post.

The fourth way, or inroad, to potentially seek a change in primary residential custody, also pursuant to C.R.S. 14-10-129, ties into the primary parent filing a motion to relocate with the child. At that point, custody becomes up for grabs in the sense that the court should do a “best interest” analysis of whether the child should remain with the current custodian and move or should stay in Colorado and reside with the non-custodial parent. Of course this type of litigation entails the custodial parent being resolved to move. The gravamen of this type of litigation will tie into an array of factors better left discussed for a “relocation” article. Regardless, opportunity to change custody can arise when relocation issues arise.

Of course the above stated items are summarizations of what it takes to change primary residential custody. To truly assess and strategize your situation, consulting with Denver child custody lawyers is the advisable route to go.