Once a divorce is final, people often wonder if the terms or orders of the divorce can ever be modified or changed. A common example occurs in parenting time. Children grow up, people move, and changes need to be made to accommodate a child's needs. This post will describe, briefly, the steps necessary to modify parenting time.
The first step is to determine if modification of the parenting time can occur without the assistance of a court. If the parties to the divorce agree on a modification, the parties can go forward without the need to ask the court to modify it. This is perhaps the simplest route to modifying a parenting plan. Most divorce decrees include a provision about modifying parts of the decree by mutual consent of the parties. Some decrees also discuss mediation steps prior to go to court.
A word of caution about modifying the parenting plan by mutual agreement. Be sure that the modification is by MUTUAL agreement, and not by unilateral self-help. In other words, a party to the divorce cannot simply modify the parenting time without notifying the other side of his or her intentions. Self-help modifications without mutual agreement is not allowed, and a Court will not permit this practice.
If the parties cannot agree on a modification, one party may ask the Court to modify the terms of the parenting plan. This is done by the filing of a Motion to Modify the Parenting Time, pursuant to C.R.S. 14-10-129. In the motion, the moving party is asking the Court to modify the parenting time. The must must include the reasons for modifying the parenting time, and most importantly, that the modification of the parenting plan is in the child's best interests. In fact, the best interests of the children is the guiding principle the Court will focus on when ruling upon a Motion to Modify Parenting Time.
The person filing the Motion with the Court must also serve the opposing side with a copy of the Motion. Serving the other side can be by personal service (handing the motion to the person), serving the opposing side's attorney, or by mailing it to the opposing side's last known address. The Court wants to make sure that you have served the opposing side a copy of the Motion, and therefore it is necessary to file a Certificate of Service with the Court verifying that a copy of the Motion was delivered.
As with any motion, the Court will await a response from the opposing side. After the opposing side responds (or fails to respond), the Court will usually require a hearing on the Motion. This hearing occurs before a Judge, who will hear evidence to determine if modification of the parenting time is in the child's best interest. At this hearing you have the opportunity to explain to the Court why it is in the best interest of the child to modify the parenting time. You may call witnesses, present evidence, and argue your case to the court. Remember, the opposing side also has an opportunity to be heard, and the opposing side has the right to question your witnesses and present a case. At the end of the hearing, the Court will either rule on the motion at the bench, or will issue a written order a couple of days after the hearing.
One final thought about modifications: review C.R.S. 14-10-129 very carefully. The statute discusses specific steps necessary to modify parenting time, particularly when the modification changes the status of the custodial parent, and when one parent is moving out of state. Also, subsection 4 of the statute discusses modifications of parenting time when a parent is alleging that the child is in danger of imminent physical or emotional danger due to the parenting time. In such instance, the Court must hear and rule upon the motion within seven days.
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