Modification of Parenting Time
Jason A. Márquez, Colorado Family Law Attorney
Parties in a divorce or allocation of parental rights and responsibilities action generally file a Parenting Plan or the Court issues an Order regarding parenting rights and responsibilities. Even with a carefully laid out plan, it is nearly impossible for the parties or the judge to make predictions about the future. There are a multitude of issues that may arise which are not addressed by a parenting plan or a Court order. Examples of such issues include: choice of doctors, choice of schools, major-medical expenses, post-secondary education, relocation, extra-ordinary expenses, religion, etc.
One of the first things to consider is a whether the current plan or order has a conflict resolution provision. Often times parenting plans include an alternative dispute resolution requirement. If the parties are unable to reach an agreement about a conflict that may arise, they may be ordered to mediate or arbitrate the dispute before seeking court intervention. Even if there is no such requirement in the parenting plan, the Court may still require the parties to attempt alternative dispute resolution before permitting the filing of a motion seeking modification.
If mediation or arbitration is unsuccessful, a party seeking to modify the current orders may file a motion requesting a modification. A filing fee is generally associated with the motion as it will often reopen a closed case. Depending on the nature of the relief requested, the Court may issue a Domestic Relations Case Management Order. This Order will establish the procedure required to adjudicate the motion. The Order often requires the parties to file disclosures, conduct discovery or hire experts much like the original proceeding. Ultimately the Court will schedule a hearing to address the parties’ dispute and issue another Order. In the alternative, the parties may reach an agreement and file a new Parenting Plan which addresses a resolution of the existing and preferably, future disputes.
There are several standards to consider when contemplating a modification of parenting rights and responsibilities. In general, an emergency motion to modify parenting time requires a showing of significant endangerment or imminent harm. A motion that requests a modification that will result in a schedule which changes the parent whom the children live with a majority of the time requires a more complex showing. In such cases, the court considers many factors including but not limited to: mental and physical health of children, wishes of the parents, wishes of the children (if relevant), ties to community, proximity of the parties, etc. A motion that requests minimal modification will generally require a showing of the best interests of the child.
Modification proceedings are often much more complex than the original proceedings that allocated parenting rights and responsibilities. An experienced attorney and a well written parenting plan are important in an original proceeding. They can help reduce potential disputes and court intervention in the future. Many times, parties do not hire an experienced attorney or file an adequate and comprehensive parenting plan. These people find themselves in Court more frequently as children get older and their needs begin to change. Like so many other situations in life, it’s important to get things done right the first time. If it’s too late for that, let an experienced family law attorney help evaluate and prepare for the future. An experienced attorney will have insight into the multitude of situations that may arise in your particular situation. Let’s get it right the second, third or fourth time as the case might be.
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