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JEFFERSON COUNTY DISTRICT COURT POST-DECREE MOTIONS GUIDELINES
JEFFERSON COUNTY DISTRICT COURT GUIDELINES FOR POST-DECREE ENFORCEMENT AND MODIFICATION OF DOMESTIC COURT ORDERS
PLEASE READ ALL OF THESE INSTRUCTIONS VERY CAREFULLY PRIOR TO FILING OF YOUR MOTION. COURT STAFF ARE NOT PERMITTED TO GIVE LEGAL ADVICE OR HELP YOU COMPLETE THE FORMS.
DESCRIPTION OF INFORMATIONAL CLINIC:
This will be a general explanation of how to pursue the enforcement or modification of final orders in Domestic Cases including those relating to children where the parents were never married. Included in the presentation will be an overview of the law and forms involved and examples of how to prepare those forms.
PRELIMINARY CONSIDERATIONS:
CAVEAT: The instructions are for informational purposes only and do not constitute legal advice about your case. If you desire to represent yourself you are bound by the same rules as an attorney. IT IS RECOMMENDED THAT IF AT ALL POSSIBLE YOU USE AN ATTORNEY TO REPRESENT YOU.
LIMITED LEGAL SERVICES: Also consider a consultation with an attorney regarding whether or not you have sufficient evidence to prove your request. Some attorneys will provide “unbundled legal services” which means either provide legal advice, help you draft the pleadings or draft any agreement you have reached without being obligated to appear in court with you. This may be much less expensive than hiring an attorney to represent you.
MEDIATION SERVICES: Office of Dispute Resolution 303-837-3672 [101 W Colfax Ave, Suite 500, Denver 80202] . ; Jefferson County Mediation Services 303-271-5060, JeffcoMediation. At Jefferson County Mediation Services, mediation is free if you are under a certain income level. You may also contact private mediators of your own choice.
COURT COSTS:
Motion to modify is $105.00
Indigency-motion to file without fees [see JDF 205].
ATTORNEYS’ FEES AND COSTS:
CRS 14-10-119 Fees and costs related to motions to modify most often ordered on the basis of the relative financial circumstances of the parties at the time of the hearing unless otherwise provided in the particular statute or rule involved. So, if you want the court to consider ordering the other side to pay your attorneys’ fees or costs on the basis of financial circumstances you must prepare and present to the court a completed Sworn Financial Statement.
RESOURCES:
YOUR COURT FILE: EXAMINE THE COURT FILE AND IF HELPFULL MAKE A COPY OF YOUR COURT ORDER(s) UPON WHICH YOU ARE RELYING OR WHICH YOU WANT THE COURT TO CHANGE
COLORADO REVISED STATUTES [CRS] 14-10-101 through 14-14-113.
courts.state.co.us; this is the official site for the Colorado courts system. In the upper right under “legal research” select Colorado Revised Statutes; then on left side of next screen where the heading is “Colorado” select “General Index A to Z”; then select “GENERAL INDEX A to Z” again; Then select “Index D”; then select “DIVORCE”; then on the main page to the right it says DIVORCE and underneath it has “Dissolution of marriage” 14-10-101 to 14-10-133; click on the 14-10-133 and the next page will have a full index of all the pertinent statutes in the left column and select the statute you want. On the statute page you can select print in the upper right hand corner of the statute and can print out the statute you need.
COLORADO RULES OF CIVIL PROCEDURE 16.2.: W/in 45 days of filing the motion the Court will determine if a Status Conference and/or a Case Management Plan will be required.
Forms and Instructions on how to use them,
The Clerk’s office is located at 100 Jefferson County Parkway, Golden, CO 80401
Forms may also be obtained from the Colorado Courts Homepage at courts.state.co.us
Steps to obtaining forms:
Step one: Select Forms tab.
Step two: Select Domestic/Family.
Step three: Select the relevant subcategory such as “child support worksheets only” or “enforce existing order” or “modify existing order” or you can go to “All Domestic Forms” which lists all of the instructions and all of the forms that you may need.
Steps to obtaining informational guidelines for Jefferson County District Court:
Select “Courts”; Select “TRIAL COURTS BY COUNTY”; Select “Jefferson County”; Select “Instructions for filing a pro-se divorce” or “Guidelines for enforcement and modification of domestic court orders.”
COMPLETION OF FORMS:
The case number assigned to your original divorce/DR case should appear on all documents related to the case. All forms must be legible and signatures notarized where required. The Clerk’s office can notarize the documents pertaining to your case at no cost.
***** Please use BLACK ink when completing forms. All documents MUST be typed, or written legibly. If something does not apply please indicate that by stating “not applicable” or “N/A”. DO NOT file incomplete documents. It is preferred that parties do not use whiteout/correction fluid on legal documents. If you make a mistake please draw a line through the error, then enter in the correct information.
It is the parties’ responsibility to keep the court informed of current contact information. This is done by completing the NOTICE OF CHANGE REGARDING CONTACT INFORMATION and filing it with the Court [JDF 1312]. There is no charge for filing this form.
Handouts that may be available at the INFORMATIONAL CLINIC ON ENFORCEMENT AND MODIFICATION OF DOMESTIC COURT ORDERS (these blank forms are also available on-line).
1. Instructions/Options to Enforce Orders [JDF 1800].
2. Completed Verified Motion and Affidavit for Citation for Contempt of Court [JDF 1816].
3. Completed Order to issue Citation and Citation to Show Cause [JDF 1817].
4. Completed Motion to Modify Support [JDF 1403].
5. Completed Sworn Financial Statement with attached schedules [JDF 1111SS].
6. Instructions for completing Child Support Worksheets [JDF 1822].
a. Statutory definition of “Income” for child support worksheet purposes.CRS 14-10-115(5).
7. Completed or demonstration of how to fill in and calculate child support using Electronic Child Support Worksheets [JDF 1820E or M re Wk Sheet A, 1821E or M re Wk Sheet B, and work sheets for split custody where you will usually use two worksheet As}
8. Instructions to file a Motion to Modify/Restrict Parenting time [JDF 14061].
9. Completed Motion to Modify/Restrict Parenting Time [JDF 1406].
10. Completed Affidavit in Support of Motion to Modify Parental Responsibility (Custodial Arrangements) or Allocation of Decision Making Responsibility [JDF 1416].
11. Copy of Rule 107 that explains the requirements for pursuing contempt charges.
TERMS USED IN FORMS OR COURT PROCEEDINGS:
IN THE CAPTIONS OF YOUR MOTIONS AND RESPONSES PARTIES KEEP SAME DESIGNATIONS AS IN ORIGINAL DOMESTIC RELATIONS CASE.
“MOVING PARTY” means the one who filed the motion and is often referred to in Court as the “PROPONENT”. The “RESPONDING PARTY” or “NON-COMPLYING PARTY” is often referred to as the “OPPONENT”, OR “CONTEMNOR” if a contempt action.
“His/him” is meant to be gender neutral-easier than saying he/she or his/her or him/her.
CONTEMPT
PUNITIVE CONTEMPT: Only seeking jail. Must prove beyond a reasonable doubt the following:
1. A lawful order has been entered by the Court. [Order must mean “shall”, not “may”.]
2. The contemnor had knowledge of the order.
3. The contemnor has the ability to comply with the order.
4. The contemnor has willfully refused to comply with the order.
Concerns:
1. High burden of proof.
2. Contemnor has the right to refuse to testify under the 5th amendment because like a criminal proceeding.
3. Difficult to prove willfulness.
4. No right to attorneys’ fees unless provision in Separation Agreement saying that if one party must go to Court to enforce a provision of the agreement and prevails he/she is entitled to attorneys’ fees.
5. Contemnor may be entitled to the appointment of an attorney if he/she is indigent.
Punitive contempt is not intended to make the injured party whole, but to vindicate the authority of the law and uphold the dignity of the Court.
REMEDIAL CONTEMPT: Seeking a sanction like jail or a fine if the contemnor does not remedy the wrong he/she committed. For example, unpaid child support, “make up” parenting time, or the transfer of title to property.
Must prove by a preponderance of the evidence the following:
1. That a lawful order was entered. [Order means “shall”, not “may.”]
2. That the contemnor had knowledge of the order.
3. That the contemnor has not complied with the order.
4. That the contemnor has the present ability to comply with the order.
5. Present ability to comply means as of the date of the hearing.
CONCERNS
1. Prevailing party has the right to recover attorneys’ fees and costs. [Means either party!].
2. Even if the contemnor caused his inability to comply, that does not excuse the requirement that it be proven that he has the present ability to comply on the date of the hearing.
3. Must clearly and specifically describe in the motion for contempt the sanctions and remedies you are seeking. [ For example that you want the contemnor to sit in jail one day for each month he is behind in his child support. Then set out exactly how many months he is behind and attach an affidavit from the registry of the courts showing that. Then ask that the jail sentence be suspended upon the contemnor paying ___ % of the arrearages on the ___ day of each month starting the ___ day of the month after a finding of contempt is made. Then add that the jail sentence shall begin on the 10th day following proof to the Court from the child support registry (CRS 14-14-110) that the contemnor has failed to pay those arrearages. Provide that proper notice must be given to the contemnor of your request for the jail sentence to begin.]
4. If you had an attorney at the time of the divorce or permanent orders, make sure that your attorney has withdrawn. If not, ask him/her to withdraw before filing the papers. Reason is that some judges/magistrates will dismiss your motion if you have an attorney of record who did not sign the motion. If your case is CLOSED but your attorney forgot to withdraw you can ask the Clerk’s office to remove your attorney from the system.
CONSIDER ALTERNATIVE METHODS OF ENFORCMENT BEFORE FILING FOR CONTEMPT:
1. Child Support Enforcement Agency of the Department of Human Services [see CHILD SUPPORT AND MAINTENANCE MODIFICATION SECTION BELOW]
2. Income assignment. [JDF 1801].
3. Child Support Judgment. [JDF 1800 Instructions for filing motions to enforce orders and JDF 1813 verified entry of support judgment].
a. Attach the family support registry record of payments.
4. Transfer of title by clerk [JDF 1814 verified motion and JDF 1815 order].
5. Garnishment for child support [JDF 82 AND FORM 30 under forms for District Court Civil, Garnishments].
6. Regarding parenting time violations, under CRS 14-10-129.5 if the Court finds violations it can issue any orders that it determines to be in the best interests of the child including w/o limitation the following:
a. Examples:
i. Mediation required with the results filed with the Court w/in 60 days.
ii. Imposing additional terms and conditions consistent with the Court’s previous order or decree except that the court shall separate the issues of child support and parenting time and “SHALL NOT CONDITION CHILD SUPPORT UPON PARENTING TIME.
iii. Modify the previous parenting time order to meet the best interests of the child.
iv. Require the parents to participate in family counseling at the expense of the non-complying parent.
v. Require the violator to post bond or other security to insure future compliance.
vi. Require make-up parenting time (some limits imposed but ok if in best interests of child).
vii. Find the non-complying party in contempt of Court and impose a fine or jail.
1. A civil fine not to exceed $100 per incident of denied parenting time. ( GOES TO THE STATE, NOT THE OTHER PARTY)
viii. Order a hearing for modification of allocation of custody or allocation of parenting responsibilities “with respect to a motion filed per CRS 14-10-131.
ix. ANY OTHER ORDER THAT MAY PROMOTE THE BEST INTERESTS OF THE CHILD.
x. ATTORNEYS’ FEES AND EXPENSES associated with the action by the parent who failed to provide the court-ordered parenting time or failed to exercise the court-ordered parenting time or by the moving party if the alleged violator is found not to be in violation of the parenting time order or schedule.
7. Mediation/Arbitration or other alternative dispute resolution.
PROCEDURE FOR CONTEMPT PROCESS:
See instructions/options to enforce orders OPTION 4: CONTEMPT OF COURT on page 3 of the instructions [JDF 1800]
1. Prepare and have notarized the Verified Motion and Affidavit for Citation for Contempt of Court [JDF 1816].
2. Prepare the Order to Issue Citation and Citation to Show Cause [JDF 1817].
3. You must obtain personal service of the motion, citation and order on the contemnor.
CHILD SUPPORT AND MAINTENANCE MODIFICATION
RESOURCES:
Child Support Enforcement at the Jefferson County Department of Human Services, Laramie Bldg., Child Support Program, 3500 Illinois St., Suite 1300, Golden, CO 80401. 303-271-4300. This agency requires a modest one-time charge and may involve a wait to get the case filed and processed.
childsupport.state.co.us
courts.state.co.us [see guidelines for using website on pp. 2-3 above.] As an alternative to the instructions given above, go to the “self help center” link, then to the “all family law forms” and look for the link to the “child support worksheets”. See Instructions to File a Motion or Stipulation to Modify/Terminate Maintenance [JDF 1399] and Instructions to File a Motion or Stipulation to Modify Child Support [JDF 1403I].
LAW:
1. CHILD SUPPORT MODIFICATION: See the instructions found at [JDF 1403I].
a. Must prove that there has been a substantial and continuing change in circumstances. There must be at least a 10% change in child support as shown by the new current child support worksheets. This does not mean merely a 10% change in income; or
b. You may also seek a modification where the original order failed to contain a provision for medical support such as insurance coverage, or payment of regular ongoing unreimbursed medical expenses and you want to include those expenses in your worksheet calculations.
c. You may also pursue an order regarding allocation of the dependency exemption for income tax filing purposes if the prior orders do not address this issue. CRS 14-10-115(12) provides “ (T)he Court shall allocate the right to claim the dependent children for income tax purposes between the parties… in proportion to their contributions to the costs of raising the children.” This usually means proportionate to their incomes as reflected on the child support worksheet.
2. MAINTENANCE MODIFICATION: See the instructions found at [JDF 1399].
a. Must prove a change of circumstances that is so substantial and continuing as to make the existing order unfair.
b. Death of the receiving spouse will automatically terminate maintenance.
c. Remarriage of the receiving spouse alone is usually sufficient for termination of maintenance but you must file a motion to terminate maintenance.
i. Ceremonial or common law marriage suffices.
Note: The informational clinic probably will not be discussing modification of maintenance, but if maintenance and child support were ordered, a change in maintenance could cause a change in child support, so analyze both.
3. DETAILS REGARDING CHANGING CHILD SUPPORT:
a. Child support may be changed by stipulation of the parties or after a contested Court hearing. In either case, each side must file a Child Support Worksheet and a Sworn Financial Statement.
b. Change applies only to the installments due after the day of filing of motion.
c. Changes that can justify a change in child support if the change is support amount is more than 10%:
i. Change in income(s). See definitions in CRS 14-10-115(3).
1. Determination of “income”-see CRS 14-10-115(5).
ii. Change in parenting time that results in a different child support work sheet such as increasing the non-custodial parent’s parenting time to more than 92 nights per year.
iii. New child(ren) of obligor, not being the child of the parties, who live with him or if not living with him that he can document actual proof of payments for support of that child(ren) and for whom he is legally responsible for supporting. The amount shall not be greater than the basic support obligation shown by a worksheet for the new child(ren) but not to exceed certain amounts shown by the statute CRS 14-10-115(6)(b).This amount is then subtracted from the obligor’s gross income prior to calculating the basic support obligation based on both of the parents’ gross incomes.
iv. Changes in child care costs. CRS 14-10-115(9).
v. Changes in health care expenses of the child(ren). CRS 14-10-115(10).
vi. Extraordinary adjustments. CRS 14-10-115(11).
1. Examples-private or special school, transportation expenses for transporting parent and child between parents’ homes, any additional factors that actually diminish the needs of the child, custodial parent receiving disability payments on behalf of the dependent children due to the disability of the non-custodial parent.
vii. Emancipation of the child. CRS 14-10-115(13).
1. Age 19. Note that if there are multiple children with others under 19 then a motion to modify child support is necessary.
a. Exceptions:
i. Mentally or physically disabled child.
ii. Child still in high school or equivalent program, support continues until the end of the month following graduation.
2. Active military duty.
3. Child marries.
viii. College expenses.
1. No, unless included in an order entered prior to July 1, 1997 or agreed to by the parties.
d. Remember allocation of dependency exemptions for income purposes:
i. Allocated in proportion to their contributions to the costs of raising the children. But a parent shall not be allowed to claim the exemption if he has not paid all court –ordered child support for that tax year, or if claiming the child as a dependent would not result in any tax benefit.
4. EXAMPLES OF COMPLETING CHILD SUPPORT WORKSHEETS TO DETERMINE IF THERE IS A 10% CHANGE IN CHILD SUPPORT
a. Calculate new child support figures with new fact/figures. Then compare with prior child support amount.
i. Instructions for completing child support worksheets. [JDF 1822].
ii. Child support worksheets-less than 92 overnights for non-custodial parent use worksheet A [JDF 1820E or M].
iii. Child support worksheets-more than 92 overnights for non-custodial parent use worksheet B [JDF 1821E or M].
iv. Child support for split custody [“split” means where there is more than one child and each parent has a child in his and her primary care] use worksheet A for each parent with the difference being the child support owing or Worksheet B if either parent exercises more than 92 overnights with the child in the primary care of the other parent.
5. CONCERNS
a. A Sworn Financial Statement must always be submitted with any request to modify except if based on emancipation of the youngest child. The statement would reveal your financial picture at a time it may not be to your advantage to do so.
b. Proving a change in other parent’s income can be difficult if he runs own business. CRS 14-10-115(5)(a)(III)(A)-means gross receipts less ordinary and necessary expenses in (B) of that section. Alleged “business expenses” can be disregarded by the Court if the Court finds them to be inappropriate.
c. Filing motion may cause:
i. Friction to point of interfering with interaction regarding children.
ii. Other side to file a motion to modify some other aspect of orders.
iii. Other side to require strict compliance with other orders such as specific parenting time rights or joint decision making rights that have been ignored.
iv. Other side to stop making voluntary contributions such items as for sports fees, clothing, etc.
d. Check the Court file to verify the financial information and worksheet that were used for the most recent order.
MODIFICATION/RESTRICTION OF PARENTING RIGHTS/DECISION-MAKING
RESOURCES:
1. Mediation through the Office of Dispute Resolution, the Jefferson County Mediation Services or Private Mediators either before you file or after you file the motion. See information on page 1.
2. Evaluations and reports. CRS 14-10-127.
a. Private mental health evaluator.
b. Department of human services.
3. Child and Family Investigator CRS 14-10-116.5.
a. Any properly qualified person.
4. Legal representative for the child [an attorney for the child]. CRS 14-10-116.
5. Parenting time coordinator. CRS 14-10-128.1.
6. Decision-maker. CRS 14-10-128.3.
7. Arbitrator. CRS 14-10-128.5.
8. Judicial supervision. CRS 14-10-130.
a. If the Court finds that the child’s physical health is endangered or his emotional development would be significantly impaired, the Court may order the DHS or Probation Department to exercise continuous supervision to assure that the terms of the allocation of parental responsibilities including parenting time are carried out.
LAW:
TERMS:
“ALLOCATION OF PARENTAL RESPONSIBILITY”: The term includes parenting time and decision- making responsibilities and the basic rule is that the Court’s decision shall be made in accordance with the best interests of the child giving paramount consideration to the physical, mental and emotional conditions and needs of the child. CRS 14-10-124(1.5).
“PARENTING TIME”: The court may provide for parenting time that the Court finds in the best interests of the child unless the Court finds that parenting time by a party would endanger the child’s physical health or significantly impair the child’s emotional development.CRS 14-10-124(1.5)(a).
“FACTORS RELEVANT TO THE AMOUNT OF PARENTING TIME”: CRS 14-10-124(1.5)(a)(I-XI).
“DECISION-MAKING RESPONSIBILITY”: The Court shall allocate the decision making responsibilities between the parties per best interests of the child. The court may allocate the decision-making responsibility with respect to each issue affecting the child mutually between both parties or individually to one or the other or any combination. Unless otherwise agreed by the parties, the person allocated the decision-making power may determine the child’s upbringing, including education, health care, religious training.
“FACTORS INVOLVED IN DETERMINING ALLOCATION OF DECISION-MAKING”: CRS 14-10-124(1.5)(b)(I-V).
NOTE: Since most motions to modify involve changing or restricting parenting time, and are not initiated to change decision-making responsibilities, the informational clinic and lecture on enforcement will focus on parenting time issues.
1. MODIFYING “CUSTODY” (CHANGING THE PERSON WITH WHOM THE CHILD RESIDES THE MAJORITY OF THE TIME. [Find instructions and forms at JDF 14061 and JDF 1411]. (Used to be called “changing physical custody”). CRS 14-10-129.
a. THE COURT SHALL NOT MODIFY A PRIOR ORDER concerning parenting time that substantially changes the parenting time as well as changes the party with whom a child resides a majority of the time (changing custody) unless it finds on the basis of facts that have arisen since the prior order or were unknown to the Court at that time, that a change has occurred in the circumstances of the child or the custodial party showing that a modification is necessary to serve the best interests of the child ( remember these are the same factors described above under FACTORS RELEVANT TO THE AMOUNT OF PARENTING TIME CRS 14-10-124(1.5)(a)(I-XI) both for modification and for determination at time of initial order or decree.) The Court shall retain the same parenting time of the prior order unless:
i. Changed by agreement of the parties [ see instructions and forms at JDF 1411], or
ii. The child has been integrated into the home of the moving party with the consent of the other party, or
iii. The custodial party proves the right to relocate with the child, or
iv. That the present environment endangers the child’s physical health or significantly impairs the child’s emotional development and that the harm likely to be caused by the change is outweighed by the advantage of a change to the child.
b. If a prior motion to modify parenting time has been filed under this section, whether granted or denied, no new motion may be filed sooner than two years later unless the moving party shows both by affidavit attached to the motion and later by proof that the child’s present environment may endanger the child’s physical health or substantially impair the child’s emotional development; or that the party that has physical custody is intending to “relocate” with the child so as to substantially change the geographical ties between the child and the moving party.
i. NOTE: Parties may agree to a change of physical custody at any time, but to be enforceable it must be in writing and approved by the Court.
c. PARENTING PLAN
i. Must prepare and submit your proposed parenting plan. [See instructions and form JDF 1113].
• Consider overnights, days, pick-up and drop-off, vacations, special days such as holidays and birthdays, etc.
d. MODIFICATION OF CHILD SUPPORT MAY APPLY
i. If plan would increase the number of overnights received by the moving party to justify change in child support, then file also a motion and order to modify child support with the appropriate child support worksheets and sworn financial statements. [JDF 1403 and JDF 1111].
2. DISPUTES CONCERNING PARENTING TIME.
a. If the problem is receiving the parenting time provided by the order then the complaining party can use CRS 14-10-129.5 to enforce his/her rights.
b. For detailed instructions on the forms to be used see [JDF 1418I].
3. MOTIONS TO RESTRICT PARENTING TIME.
a. The Court shall not restrict a parent’s parenting time rights unless it finds that the current parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. CRS 14-10-129(1)(b)(I).
i. This restriction on reducing a parent’s parenting time does not apply where the custodial parent intends to relocate the child to a residence that substantially changes the geographical ties between the child and the other party. See section of outline on Parent Relocating with Child.
ii. Conviction for certain crimes INCLUDING A CONVICTION FOR DOMESTIC VIOLENCE BASED CRIME that constitutes a potential threat or endangerment to the child or other parent allows the Court to restrict parenting time, if the other party objects on that basis. CRS 14-10-129(3)(a).
• Special rules pertain to this situation.
a. Objecting party shall give notice and offending party has 20 days to file response; and if fails to respond, parenting time of offending party shall be suspended until further order of Court. If offending party does object, a hearing shall be held w/in 30 days.
i. Offending party may be responsible for attorneys’ fees and costs.
ii. Offending party shall have burden of showing that his parenting time is in the best interests of the child.
iii. Court shall consider whether actions of either party have been substantially frivolous, groundless, or vexatious. (May mean Court can order either side to pay others attorneys’ fees and costs).
iii. Sex offense in another state may require a sex-offense specific evaluation and parental risk assessment in Colorado and the Court shall consider that in any order for parenting time or contact. Offending party shall pay for costs of evaluation.
4. EMERGENCY MOTIONS TO TEMPORARILY RESTRICT PARENTING TIME. CRS 14-10-129(4).
a. Again see instructions in JDF 1406I and 1406.
b. Child is in imminent physical or emotional danger due to the parenting time or contact by the other parent.
c. Shall be heard and ruled upon by the Court no later than 7 days after filing of the motion.
d. During the time after filing the motion until the hearing, any parenting time occurring shall be supervised by an unrelated 3rd party deemed suitable to the Court; or by a licensed mental health professional. This section does not apply to any motion filed based on the conviction of one of the offenses in CRS 14-10-129(3)(b).
e. MOVING PARTY (TO RESTRICT) IS LIABLE FOR ATTORNEYS’ FEES AND COSTS OF OTHER PARTY IF COURT FINDS THAT THE FILING OF THE MOTION TO RESTRICT WAS SUBSTANTIALLY FRIVOLOUS, SUBSTANTIALLY GROUNDLESS, OR SUBSTANTIALLY VEXATIOUS.
f. NOTE: Under CRS 14-10-119 the Court may always grant attorneys’ fees for financial reasons irrespective of who prevails.
5. MOTIONS TO MODIFY PARENTING TIME BECAUSE “CUSTODIAL” PARENT RELOCATING WITH THE CHILD. CRS 14-10-129(1)(a)(II) and CRS 14-10-129(2)(c).
a. See instructions at JDF 1400.
b. “Relocation”: Custodial parent is seeking to relocate the child to a residence that substantially changes the geographical ties between the child and the other parent.
c. Factors to be considered by the Court in allowing relocating parent to remain custodial parent:
i. The Court shall retain the parenting time established by the prior order/decree unless:
• Parties agree otherwise; or
• The Court determines that modification of parenting time (restricting or changing the parenting time of the parent who is not moving) is in the best interests of the child taking into consideration all relevant factors, including whether the other party has committed domestic violence, and all other factors in 14-10-124(1.5) and
a. Reasons why the party wishes to relocate;
b. Reasons why the other party is objecting;
c. History and quality of each party’s relationship with the child since any previous parenting time order;
d. Educational opportunities at the existing location and the proposed new location;
e. Presence or absence of extended family at existing vs. new location;
f. Advantages of child remaining with the primary caregiver(custodial parent);
g. Impact of move on the child;
h. Ability of Court to fashion a reasonable parenting time schedule if change permitted;
i. Any other relevant factor bearing on the best interests of the child ( such as standard grounds that the child’s present environment endangers the child’s physical health or significantly impairs the child’s emotional environment and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child)
d. Remember CRS 14-10-119 allowing attorneys’ fees based on financial circumstances of parties.
6. MOTIONS TO MODIFY DECISION-MAKING.
a. Allocation of Decision-making responsibility.
a. See CRS 14-10-124(1)(b). The basic test is the best interests of the child taking into account numerous factors shown in CRS 14-10-124(1)(b)(I)-(V) and (2)-(4). See[ JDF 1413I].
b. Prepare a Parenting plan. CRS 14-10-124(7). [See JDF 1113.]
c. Remember the Court can order mediation for both the original plan and in connection with an attempt to modify the same.
d. Court can order Judicial Supervision of decision-making. CRS 14-10-130.
b. Law regarding Modifying Decision-Making.
a. Test for modification is if it is in the best interests of the child. CRS 14-10-131.
b. Like motions to modify custody, motions to modify decision-making responsibility may not be filed any sooner than 2 years after the last motion to modify was disposed of.
i. Unless can show by affidavits that without a change the child’s physical health is endangered or there will be significant impairment of child’s emotional development.
c. RULE: Court shall retain the same allocation of decision-making unless it finds that based on a continuing change of circumstances since the prior order or based on circumstances that were not known by the Court at the time of the prior order, such a modification is in the best interests of the child. IT SHALL RETAIN THE SAME ALLOCATION OF DECISION-MAKING UNLESS:
i. The parties agree to the change; or
ii. The child has been integrated into the family of the moving party with the consent of the other party and such situation warrants a modification; or
iii. There has been a modification of parenting time per 14-10-129 that warrants a modification of allocation of decision-making responsibilities; or
iv. 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
v. The retention of the allocation of decision-making responsibility would endanger the child’s physical health or significantly impair the child’s emotional development and the harm likely to be caused by a change is outweighed by the advantage of a change to the child.
7. ADDITIONAL RULES PERTAINING TO PARENTING TIME AND DECISION-MAKING:
a. The Court shall not consider the conduct of a party that does not affect that party’s relationship to the child.
b. The Court shall not presume that a person is better able to serve the best interests of the child because of the person’s sex.
c. If there is a medical emergency for the child, either party shall be allowed to obtain necessary medical treatment for the child w/o being in violation of the order allocating decision-making orders.
d. Parenting plan: Parties should submit one. The Court must approve it. If parties don’t, or if the Court does not approve it, then the Court shall formulate a parenting plan and/or decision-making plan.
e. The Court may order mediation for either the initial formulation of the plan or modification of the plan and may allocate the costs between the parties.
GENERAL PROCEDURES REQUIRED FOR FILING, SERVING, AND RESPONDING TO MOTIONS, AND SETTING OF MOTIONS
Follow the instructions given by the Court Clerk when you file the motion. For a general idea of the process, follow the instructions at [JDF 1122] and substitute the word “motion” for “petition”.
1. Does motion require an affidavit or verification? If so, the clerk of the court can verify it.
2. File motion and serve on other party. Service of any motion, other than a motion, citation and order for contempt may be made by mail. Colorado Rules of Civil Procedure 5(a). Best to personally serve emergency motions such as to restrict parenting time immediately because of danger to child. CRS 14-10-129(4).
a. Filing fee for a Motion to Modify is $105.00.
b. No filing fee for a contempt motion.
3. File a Notice to Set Hearing as soon as allowed by the Court because some Courts require an initial status conference or other procedure before being permitted to set a motion for hearing.
4. Contact the Court or Division clerk and get a hearing date.
5. Notice of Hearing [JDF1124] containing the hearing date and send copy to other party.
6. RESPONDING: Best to respond by filing a Response that details your objections. There is no fee to file a response to a motion to modify unless the party has not previously paid a response filing fee in the case.
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