Even under the best of situations, parents do not always see eye to eye on decisions about their children. Disagreement often worsens after a break up when parents go their separate ways and possibly find new partners. What if the difference of opinion rises to the level of a safety issue?
The world is amid a pandemic, which is changing our day-to-day life. The Center For Disease Control has recommended social distancing and people in some locations across the country are asked to shelter in place. These requirements may impact child safety.
Decision making responsibility, more often than not, is shared between parents. This means that both parents have to consult with each other on important matters involving the children to include those related to health. What can you do if your ex is taking the children out in such a manner that you are concerned about their safety?
First, whether a child’s safety is being impacted is fact-based and determined on a case by case basis. Taking the children on a walk around the park keeping a six-foot distance from others is an entirely different matter than taking the child into crowds of 10 people or more who are in close proximity to each other.
In extreme situations that rise to the level of child endangerment, a parent has two options. One option is to request a modification of allocation of parental responsibilities, AKA child custody, for supervised visitation to protect the children from serious health threats, such as COVID exposure. The other is to request a modification of decision-making responsibility to shift sole decision-making authority to one parent for one or more decision-making areas. In this case, the medical/healthcare decision-making could shift to the parent more willing to protect the children from serious health threats.
The legal standard for a modification of parenting time rights is set forth in Section 14-10-129(1)(a)(I) of the Colorado Revised Statutes and provides that the court may make or modify an order granting or denying parenting time rights whenever such order or modification would serve the best interests of the child. However, if the parenting time modification implements supervised visitation, that legal standard is a higher standard of child endangerment because supervised visitation is a restriction on parenting time.
The standard for modification of decision-making responsibility requires a showing of child endangerment. A Court may modify decision-making responsibility if it finds that retention of the allocation of decision-making responsibility would endanger the child’s physical health or significantly impair a child’s emotional development, and the harm likely to be caused by the change in the environment of the child is outweighed by the advantage of the change to the child. The burden of proof rests with the moving party, which means that the party asking for the modification has to establish to the Court why decision-making responsibility should change.
When the legal standard is the best interests of the child for allocation of parental responsibilities, the moving party submits a motion for modification and supporting affidavit letting the court know why a change should be made. In situations of endangerment, if the moving party establishes in an initial motion grounds for child endangerment, the Court issues an order to show cause to the opposing party for a hearing to show why the requested modification should not be granted. Copies of any documents filed with the court must always be provided to the opposing party. An attorney can assist in filing the correct paperwork and representation at any necessary proceeding.
Matters involving out-of-state court orders or parties residing in different states can raise jurisdictional issues and are more complex. A Colorado court can modify an out-of-state custody order if the child resides in Colorado and (1) the court that entered the order no longer has jurisdiction or has declined to exercise jurisdiction, or (2) no parent or the child resides in the issuing state. It is best to consult with an attorney in multi-jurisdictional cases to better understand where jurisdiction lies. Jurisdiction determines where the case must be filed and which state law governs.
If you have questions about a child support modification, contact a modern Family Law Attorney.
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