The Rocky Mountain Family Lawyers are Denver’s award-winning family law trial advocates. We’re experts in cases involving modification of decision making responsibilities in Colorado.
Call us to talk personally with a lawyer about modifying decision making responsibilities in Denver or other Colorado cities. (303) 502-9600.
The legal standard for modifying decision-making depends upon whether the parties share joint decision-making or not. Unless the parties already share joint decision-making, modifying an existing order allocating decision-making responsibilities is often difficult or even impossible. For the reasons set forth below, it is imperative that an experienced attorney prepare any motion to modify decision-making responsibilities. Call the Rocky Mountain Family Lawyers at (303) 502-9600, to discuss your efforts to modify decision-making responsibilities.
General Rule for Modifying Decision-Making Responsibilities
Courts are prohibited from modifying a previous order allocating decision-making responsibilities unless (1) there is a change in the circumstances of the child, the child’s custodian or party with decision-making responsibilities and (2) the modification is necessary to serve the best interests of the child. Such a finding must be based on new facts, or facts that were unknown to the court at the time of the order to be modified.
Even if the above two requirements are met, the court will nevertheless retain the previous allocation of decision-making responsibilities unless one of the following conditions exists:
- Agreement: the parties agree to the modification;
- Integration: the child has been integrated into the family of the petitioner with the consent of the other party, warranting a modification of the allocation of decision-making responsibilities;
- Change in Parenting Time: a change in parenting time warrants modification of the allocation of decision-making responsibilities;
- Implicit Consent: a party has consistently consented to the other party making individual decisions for the child which decisions the party was to make individually or the parties were to make mutually; or
- Endangerment: retention of the existing order on decision-making responsibilities would endanger the child’s physical health or significantly impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
If a party seeks an order to switch sole decision-making responsibilities from the other party to him or herself there must be a showing of endangerment. However, the Colorado Court of Appeals has held that, if the parties share joint decision-making and neither party has been designated as the residential parent, the moving party must merely show that a change in decision-making is in the best interests of the child. This standard essentially gives the court complete discretion.
Burden of Proof
The burden of proof is on the party seeking to change decision-making responsibilities.
If a non-parent seeks to change decision-making responsibilities, there is a rebuttable presumption that the position of the current decision-maker (parent) is in the best interests of the child.
Before holding a hearing on a motion to modify decision-making responsibilities, the court must satisfy itself that adequate cause exists to hold a hearing at all. If not, the court must deny the motion. The standard of review in such cases is abuse of discretion, which is usually exceedingly difficult to prove absent clear error or bias on the part of the judge or magistrate.
Finally, if a motion to modify decision-making responsibilities was previously filed, no subsequent motion may be filed within two years of the disposition of the previous motion. There is an exception for emergencies where the child is endangered by the existing arrangement. Also, somewhat strangely, the Colorado Court of Appeals has held that a child custody order issued pursuant to divorce does not trigger the two-year rule. Nor does the two-year rule apply to motions to modify parenting time.
The Rocky Mountain Family Lawyers are Colorado experts on modification of decision making responsibilities. Call us now to discuss your legal options and rights concerning modification of decision making responsibilities in Denver, Colorado and surrounding cities (303) 502-9600.