Child Custody Frequently Asked Questions: Modifications of Parenting Time or Custody

  1. How often can my ex file a motion to change custody?

    The answer to this question depends upon the content of the existing orders. If one person has the majority of the visitation, or time, with the children, C.R.S. 14-10-129(1.5) indicates that absent a showing of danger, a motion to modify parenting time that also changes the party with whom the children reside a majority of the time, can only be filed after 2 years has passed from entry of the final orders or disposition of the most recent motion to change custody. If the parties already have equal parenting time, there is no set time frame in terms of how someone must wait to try to change the orders as to custody. That being said, most Denver family law courts will ultimately have an issue with someone who files repeated motions. The absolute exception to the 2-year rule is endangerment, whether physical or emotional in nature. When children are in danger, statute and courts understand that action may need to be taken without waiting.

  2. How old does my child have to be to decide where he wants to live?

    As custody lawyers in Denver, this is perhaps one of the most commonly asked questions. People have varying pre-conceived notions regarding when a child’s wishes govern in a custody or modification case. Some people believe the magic age is as early as 12. They are wrong. In reality, there is no statutorily set age at which a child gets to decide where he or she will live, or whether he or she will see the other parent for visitation. That being said, courts and statute recognize that children’s wishes matter and that those wishes should be considered when children reach a suitable age to weigh in on the issue. As a general rule of thumb, we will tell clients that by 15, 16, or 17, most court’s will start to put a much greater weight on a child’s wishes and may consider changing custody or visitation based on such.

    Some judges will let the child’s wishes govern outright at this age, recognizing that you cannot force a 17-year old to be somewhere he or she does not want to be. Other courts may change time, but still force some sort of relationship, or counseling, even if a child is 16 or 17. In conclusion, there is no magical age, but there is an age range in which the child’s wishes may carry greater weight. As part of the equation, a court will also look into the environment into which the child wishes to go. A court is not going to give a 15-year old free range to move into mom or dad’s party house, with lax rules and no concern for grades or development. Our attorneys can help you assess what is going on with your teenager and what legal steps may be worth taking in your Colorado visitation or custody case related to his or her wishes.

  3. I am in the military and being deployed overseas. What happens with my parenting time and joint legal custody?

    The Colorado legislature has deemed the deployment of a person in the military to be a legitimate endeavor warranting special treatment under statute. As such, pursuant to C.R.S. 14-10-131.3, any changes to parenting time or decision-making are going to be viewed by the court, as per statute, as interim or temporary in nature. A service member going overseas should certainly attempt to get any agreements in place prior to leaving regarding parenting time or decision making. Statute indicates that upon return to Colorado, and the filing of a notice with the court, parenting time and decision-making as per prior orders resumes. Thus, those in the military are afforded the protection of knowing that being deployed overseas will not likely be used against them in future legal proceedings. One should also keep in mind that statutory standards for modifications of legal custody/decision-making would still apply. Fortunately, in this day of internet, cell phones, and Skype, decision-making regarding major issues should not be seriously interrupted from a logistical standpoint due to overseas deployment. We are ready to help Armed Forces members with their custody and visitation matters, before and after deployment.

  4. I have custody of my kids. Can I move out of state with them?

    Relocation of children outside the Denver metropolitan area is one of the issues our firm handles for our domestic relations clients. When a party has primary residential custody, or even sole decision-making, he or she does not have the legal right to relocate the children out of state, or in a manner that geographically impacts visitation in a significant manner, without written permission from the other party or an order of the court. In reality, we believe that relocation is the most difficult battle to win. As with other aspects of custody cases, a court must make the decision as to whether to authorize relocation of the children based on the “best interest standard.” C.R.S. 14-10-129, the statutory section dealing with modifications of visitation, sets forth the criteria a court will look at when assessing a request to relocate. In instances in which there are two good parents and significant visitation for the non-custodial parent, getting permission to relocate is highly unlikely.

    In essence, the party wishing to move with the children must have a very good reason, such as a new job making much greater income, or perhaps the other parent is not following his child support or alimony obligation, or maybe that parent has not been exercising his or her visitation for quite some time. Each case is different and unique, but a court will be looking for a significantly important reason for the move, whether reasonable visitation can be implemented for the party left behind, and whether the move is truly in the kids’ best interest. A new spouse or significant other living, or moving, out of state is not a valid reason in the eyes of most court. It is not uncommon for the court to appoint a child and family investigator or parental responsibilities evaluator to investigate all aspects of the case as relate to relocation. We can help you assess your potential relocation case, whether bringing it or fighting against it.

  5. We got divorced in Colorado, but have both moved to different states. Does our custody case remain in Colorado?

    The answer to this question depends on various factors. Pursuant to Colorado Revised Statutes, Title 14, Article 13, the Uniform Child Custody Jurisdiction and Enforcement Act, if Colorado custody orders were issued, Colorado retains what is called “exclusive continuing jurisdiction,” unless a couple of different factors present themselves. The primary issue giving rise to custody jurisdiction being transferred to another state will generally depend on whether one parent remains in Colorado. If the children and one parent have been gone for 6 months or more, there is an argument that jurisdiction could be changed. However, pursuant to C.R.S. 14-13-202, jurisdiction would remain in Colorado unless the children and both parents are gone. With the above posed question, both parents have moved away from Colorado. As such, it would be proper to transfer jurisdiction to the state in which the children now reside, presuming they have been there for 6 months or more. As jurisdiction under the UCCJEA flows with the children, not the parents, there shouldn’t be a battle over which new state will assume jurisdiction. Though a case may originate here, the law recognizes that people move. It would make no sense in this instance for Colorado to retain jurisdiction when both parents and the children are elsewhere.
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I am thankful for the job Sarah McCain did for me in my fight with my ex-wife for visitation rights with my daughter. Sarah and the team at Plog & Stein handled my case in an efficient, affordable, and professional manner. Sarah negotiated a new parenting plan as well as acceptable visiting rights and even a favorable modification in my child support. I recommend Sarah and the attorneys at Plog & Stein to anyone that has these types of family issues and need strong, knowledgeable representation.
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