Frequently Asked Colorado Modification Questions Part 3

  1. How far back can I modify child support?

    Child support modifications are governed by C.R.S. 14-10-122. In most instances, a modification of child support can be assessed or made retroactive to the date a motion to modify is filed. This is an important factor to keep in mind in that requesting a modification in a timely fashion upon ascertaining that facts exist to support such can mean potentially hundreds or thousands of dollars either gained or saved, depending upon whether the party is the payer or payee. The actual modification would not be made until the issue’s hearing, or agreement of the parties, but will generally factor in any over or underpayment going back to the date of filing. The court does have discretion to not make the modification retroactive to the date of filing if such would create a financial hardship for one of the parties. We rarely see the courts invoke this hardship provision. C.R.S. 14-10-122(5) also authorized modification of child support retroactive to the date of an agreed upon change in residential custody from one parent to the other. In such an instance, the analysis would require calculating child support from the day of the change in custody forward. It is not uncommon to see cases in that parties go years without making the change, only to have the new support assessed well after the fact.

  2. 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 legal 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.
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