Frequently Asked Colorado Modification Questions Part 1
- What is the standard for modifying child support?
In Colorado, the standard for modifying child support is that there has been a "substantial and continuing change in circumstances" leading to a 10% or more change in the current child support amount. In essence, the numbers that go into a child support calculation must change such that the child support amount changes by 10% or more. For example, let's say Bob makes $100,000 per year and Karen makes $200,000 per year and that Bob pays Karen $500 per month for support of their son, Timmy. Bob gets demoted at work and his pay is decreased to $50,000 per year. If the new income is plugged into the formula and the bottom line amount changes to $449 per month, then Bob can modify his child support because the amount has gone down by $50 per month or more (10%).Changes to child support also often occur based on changes to visitation or custody.
- Can I modify my visitation so that the kids live mostly with me?
Maybe. In instances in which the parties truly split 50/50 time with the kids, a modification of the visitation would be governed by the "best interest" standard. Therefore, if the court believed a modification of parenting time leading to the kids being with one parent more time than the other was in their best interest, the court could do so. However, in instances where one parent has been awarded primary residential status, meaning the kids live primarily with that parent, the standard to modify is generally what we attorneys call an "endangerment" standard. Statute indicates that you cannot change visitation in a manner that also changes custody unless the parties agree or the primary custodian’s retention of custody presents a physical or emotional danger to the children. This is a difficult burden of proof to meet, meaning courts will likely truly require a showing of harm to the children before just changing residential custody. One can also seek a change in visitation that changes residence if the custodial parent has stated that he or she intends to relocate with the children. In such instances, the "best interest standard" comes back into play.
- My ex quit her job and wants to lower the child support she pays. Can she do that?
Generally, the answer is "no." In Colorado, family law courts generally hold people to language set forth in the child support statute, which indicates a duty for both parents to be employed to the best of their ability. When a parent just quits his or her job, a court will generally find him or her to be voluntarily under-employed and will likely attribute his or her old income from the job that was quit for purposes of calculating child support. Thus, a court will not likely find quitting a job to be a meritorious reason for modifying child support. Courts may allow voluntary quitting of a job to be a basis for modifying child support, but generally only if this relates to going to school with the end goal of making more money or a good faith career change ultimately designed to lead to more income.
- When can my kids decide they don't want to go for visitation?
This is perhaps the most common question asked by people in relation to modifying visitation, or residential custody as their kids get older. People often call our office with the belief that kids get to decide at 12 or 13. Because of that belief, they will call asking things like, "Sally is 12 right now and hates to go to her dad’s. She can decide not to go, right?" or "My 13-year-old says she wants 50/50 visitation. The court will give me that even if her dad says no, right?" In reality, there is no specific age set forth in statute. In reality, when kids start reaching 14, and more likely 15 or 16, most judges will put a much greater weight on the child's wishes in terms of visitation or residential custody. It is not uncommon as kids reach their middle to upper teenage years that they may want to spend more time with the other parent, or even change residence all together. Though the legal standards set forth in a prior answer still apply, most courts recognize that you can't force a 16-year-old to be where he or she does not want to be. You can still get a 12-year-old to follow a visitation schedule. As kids get older, both parents should recognize that their wishes may be factored into any modification of visitation request.
- 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.
Main Modification FAQs