Modification Frequently Asked Questions: Modifying Child Custody

1. I want to modify decision-making or legal custody. How can I do that?

   Legal custody, or parental responsibility regarding the making of major decisions for a child, is modifiable pursuant to C.R.S. 14-10-131. The standard to modify child custody, whether from sole to joint or joint to sole, is not a best interest standard. Rather, statute sets forth various criteria. Specifically, to modify decision-making, one must either show that a physical danger or significant emotional impairment will occur if the existing order regarding legal custody is not changed. Absent extreme circumstances, such as substance abuse or mental health issues, this can be an extremely difficult burden of proof to meet. Statute also allows for modifications of legal custody in instances in which one parent has essentially given up his or role in making decisions. In these instances, which are rare, a parent may have just bowed out of the picture or may have expressly, or by conduct, just allowed the other party to make decisions alone for a significant amount of time. Additionally, a court can modify decision-making in instances in which there has been a change in parenting time that warrants such. For example, if a child has lived with the mother, who has sole legal custody, for years and the father has had only weekend visitation, it would likely be appropriate to modify decision-making to joint if the child comes to reside with father. In this example, it would make no sense for father to have the child residing with him but for the mother to have sole decision-making power or legal custody.

2. My ex just filed to modify custody last year and is now threatening again. What will the court do?

   Pursuant to C.R.S. 14-10-129, a motion to modify visitation that also requests a change in primary residence cannot be filed until 2 years has passed since the disposition of the last similar motion. This means that regardless of the outcome of the prior motion, there is a 2-year waiting period. Therefore, if the parent in this instance files a new motion within those 2 years, the initial step in the response should be to request immediate dismissal of the new motion. The only exception to this is if there are allegations of physical or emotional endangerment, or if the child has been integrated into the moving party’s home, meaning he or she is now residing with that party. Without this two-year rule, a party could burden the court system and the other party with a motion a day. This makes no sense and would certainly not be in the best interest of the children. We are fully abreast of the legal standards for seeking a modification of a Colorado visitation order.

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