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My Ex Is Not Exercising His Visitation. Can I Modify Child Support?

Colorado child support is determined based on a variety of factors. As per C.R.S. 14-10-115, the primary factors going into a Colorado child support calculation are the parties’ incomes, number of children, number of overnight visits per year for each parent, day care, and health insurance. When support is initially assessed, or during a child support modification proceeding, the number of overnights exercised by each parent should be properly calculated, as this number can have a significant impact on the bottom line child support figure.

Child support is calculated and set forth in a child support worksheet. There are two types of worksheets parties might have in a divorce, custody, or child support case. The first is a Worksheet A and the second is a Worksheet B. With the Worksheet A, the parent paying support has less than 93 overnights of parenting time per year with the child or children. In the Worksheet A situation, overnights are not factored in at all and have no impact on the bottom line monthly amount of child support paid. With the Worksheet B, the non-primary parent has 93 overnights per year or more, up to 182.5. This is a big range and the specific monthly amounts of child support vary along the way, with the child support amount paid going down incrementally with each overnight of visitation added.

With overnights potentially have such an impact on child support, it is not uncommon for Denver child support attorneys to see litigation and arguments over how much parenting time each parent gets. Sometimes, the potential payer wants more solely to lower his or her child support. Conversely, the recipient may want to limit the paying parent’s time solely to increase the monthly amount of child support. Family law courts and attorneys are very familiar with this dynamic and the interplay between parenting time and child support. So are many parents.

When orders are entered, whether via an agreement or a hearing in front of a judge, the presumption is that each parent will follow those orders as to visitation and will exercise the time allotted. However, this is not always the case. Sometimes one parent might push for equal (50/50) parenting time, with no intention of ever really exercising it. In other situations, the parties might have a working schedule which changes for various reasons, such as a job change or one parent moving too far away to make the current parenting time situation feasible. Whatever the reasons are, when one parent foregoes his or her visitation, this may be grounds for modifying child support. However, the analysis of any situation is not always that simple and the outcomes can vary.

If the other parent in your case is not exercising his or her time, the first step will be to run a new calculation based on the average number of overnights they are actually exercising. To do this, you will need some time to pass, perhaps several months, or more, to be able to establish a pattern and asses the true number of nights. The next step will be to run the calculation based on current figures. As with any child support modification, pursuant to C.R.S. 14-10-122, the change in the monthly amount generated by the reduction in overnights must be 10% or more from the currently ordered monthly amount of child support. Presuming a 10% or more change occurs, you would then have a basis to seek a modification.

One thing for the payee parent to keep in mind is that the court system tends to gravitate towards maximizing time with each parent. As such, one parent might go months or years without taking all of their time, only to start taking it again upon the filing of a motion to modify child support. As such, it may be advisable to also seek a modification of parenting time to also reflect what has become the status quo. This issues can get tricky and delicate and having evidence of the patterns and discussions can matter when it comes time to go to court. As such, it’s generally advisable to contact a family law attorney to assess your case and weigh your options prior to filing.

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