Pursuant to Colorado Revised Statutes §14-10-131, a parent can request a modification of decision-making responsibility, when facts have arisen since the prior order or that were unknown to the court at the time of the prior order that demonstrate that there has been a change in circumstances of the child, or the child’s custodian, or the parent to whom decision-making responsibility was allocated, and the modification is necessary to serve the best interests of the child. However, the statute requires that the Court maintain the current decision-making order unless certain specific circumstances are met.
When the Colorado statute governing modification of decision-making responsibility was modified in 1999, the legislature made it more difficult, in most circumstances, to prevail in an action regarding modification of decision making. Essentially through this modification, the legislature clarified that except in certain cases which are set forth below, a parent who tries to modify-decision making responsibility has to prove that retention of the current decision-making responsibility order would endanger the child or children. Specifically, the court looks to any endangerment related to the child’s physical health or emotional development to determine whether or not the harm likely to be caused by the change in the environment is outweighed by the advantage of the change to the child. This is a very difficult standard to meet.
As discussed, a lower standard of best interests of the child will apply under certain specific circumstances. Those occasions are:
- The parents agreed to the modification;
- The child has been integrated into the family of the requesting parent with consent of the other parent and such circumstance warrants a change in the decision-making responsibility;
- There has been a change in parenting time pursuant to the child’s best interests, which justifies a change in decision-making responsibility; or,
- A parent has consistently agreed to the other parent making individual decisions for the child that the other parent was to make individually or the parents were to make together.
Before the change in the legislation, many courts determined that modification of decision making authority could be viewed under the less stringent standard of best interests. However, the change to the Colorado statute controlling modification of decision-making responsibility in 1999, made it very difficult, practically speaking, to obtain a modification of decision-making responsibility.
Therefore, if endangerment is not clear when looking at the decision making authority which currently exists, the party seeking a modification of decision making authority should look to the other factors (and listed in the statute) to explore a less stringent standard by which a modification of decision making authority may be successful.