Modification of Parenting Time and/or Child Support

Modification of Parenting Time Orders

What are the criteria for modification of a parenting time order?

The court will not modify an order granting or denying parenting time unless such modification serves the “best interests” of the child. The court will also consider whether the child’s present environment endangers his/her physical health or significantly impairs the child’s emotional development where one party is seeking to become the majority-time parent. However, in situations where one parent has the child a majority of the time (i.e. more than 50%) and the other parent petitions the court for an equal (i.e. 50/50) parenting schedule, the court will utilize the less stringent “best interests” test. This is because neither parent is deemed the majority-time parent when they share a 50/50 parenting schedule.

How often can a motion to modify parenting time (or parental decision-making) be filed?

The first motion for modification may be filed at any time after the court issues its initial custody order. Thereafter, any subsequent motion which seeks to substantially modify parenting time and change the child’s primary residence (or modify parental decision-making) can only be made two years after the previous motion was filed (regardless of whether the prior application was granted or denied by the court) – except in cases where a continuation of the existing custody order would endanger the child’s physical health or significantly impair the child’s emotional development or where the parent with whom the child resides a majority of time intends to relocate to a new residence which “substantially changes the geographical ties between the child and the other party.”

If a parent has been convicted of a crime, can his/her parenting time be restricted?

The court may not restrict one parent’s parenting time unless it finds that the parenting time will endanger the child’s physical health or significantly impair the child’s emotional development. Only certain crimes, such as those enumerated in C.R.S. §14-10-129(3)(b) which include murder, child abuse and the sexual exploitation of children or any crime in which the underlying factual basis was found to include an act of domestic violence that constitutes a potential threat to the child or the other parent, can form the basis to reduce or restrict parenting time. The offending parent must prove to the court that the continuation of his/her parenting time will serve the “best interests” of the child.

Modification of Child Support Orders

What are the criteria for a modification of child support?

Child support may be modified upon a showing of a substantial and continuing change in circumstances. (C.R.S. §14-10-122). A “substantial and continuing change in circumstances” requires that at the time of the filing of a motion for modification of child support, application of the child support guidelines and schedule of basic child support obligations (C.R.S. §14-10-1115) will result in a change of at least 10 percent in the current monthly child support obligation.

If a parent remarries, can the income of his/her new spouse be used as the basis for modification?

Child support is calculated utilizing the income of the child’s parents. Accordingly, if one spouse remarries, the income of his/her new spouse is not factored into the child support calculation. A party who remarries is also not entitled to a credit for any monies expended for the support of his/her stepchildren unless the stepchildren have been legally adopted or that party is otherwise compelled to pay such support pursuant to a court order.

What is the effective date of any court ordered modification?

Child support may be modified only as to installments accruing after the filing of a motion for modification. Thus, any court ordered modification is retroactive to the date the motion was filed unless the court finds that such retroactive application will cause “undue hardship or substantial injustice.” The only exception is where the parties have a mutually agreed-upon change in the physical care of the child.

What is the Child Support Enforcement (CSE) program?

CSE units have been established in every county, through the Colorado Department of Social Services, to help parents in obtaining financial support and medical insurance coverage for their children by locating parents, establishing paternity and establishing and enforcing support orders. CSE utilizes a number of remedies to collect current and past due support including contempt, wage garnishments, credit bureau reporting, driver’s license suspension, professional license suspension, recreational license suspension, intercepts, garnishment of workers compensation, garnishment of unemployment compensation benefits and lottery intercepts. CSE will also enforce spousal maintenance when it is included in the child support order and current support is still owed. Where one parent does not reside in Colorado, CSE will work cooperatively with other CSE units in other states to establish and/or enforce child support orders.