Here at Matthews & Matthews we receive a number of calls each month from people who are looking to change parenting time or decision making after final orders have been entered by the Court.

Changing Parenting Time or Decision Making does require returning to Court unless the parents can come to an agreement regarding the change.

Best Interest of the Child Standard
There are two ways a court will look at a request to change parenting arrangements. If the non-residential parent (the parent with the least parenting time) is asking to increase their time with the child the Court will look at the request from the perspective of what is in the "best interest" of the child.

Endangerment Standard
However, if the parent requesting the change is looking to restrict the other parent's time with the child or they are asking to change the residential parent (the parent with the majority of the time), the the Court will use a much higher standard of review. The Court will only agree to the requested change if there is sufficient evidence of endangerment to the child's physical health or emotional development.

If you are dealing with a physical danger like neglect or physical or sexual abuse, the evidence required is clear, however, endangerment to emotional development remains a grey area.

Endangerment to Emotional Development
Cases of endangerment to emotional development tend to require expert testimony. There is a line between bad parenting and "endangerment to emotional development". Expert testimony by a therapist who has evaluated the child will assist the court in determining if that line has been crossed. Factors to consider beyond the evidence supporting the alleged parental behavior include risk and resiliency factors concerning the child.

In a case where endangerment to emotional development is alleged, either parent or the Court may request that a Child and Family Investigator be appointed. However, due to the unclear nature of emotional endangerment, it may be wise to have the child evaluated by a professional with specific expertise in children's emotional issues within the family system like a licenced Marriage and Family Therapist.

Evaluating the child when you have joint decision making
In the case of parents with joint decision making this can be a problem in that the accused parent might not agree to the evaluation of the child. However, there are often provisions in the parenting plan that allows one parent to get medical attention in the case of an emergency without the consent of the other parent. You would have to look at the circumstances of the particular case to determine if the emergency provision would apply to evaluating the child for the purposes of determining endangerment to emotional development. This decision should be discussed with legal counsel before proceeding.

Colorado Case Law on Emotional Endangerment
There are a few Colorado Appellate Court cases that have ruled on what constitutes endangerment to emotional development. The facts of every case are different but the following situations provide some guidance on what a Court will consider endangerment to emotional development:

1. Parental Alienation when well documented with expert testimony.
2. Father's reluctance to recognize child's problems and inability to work with mother in addressing those problems.
3. Where record revealed abundant evidence that children feared mother's new husband would sexually molest them.
4. Religious beliefs when the evidence showed such beliefs or practices were reasonably likely to cause present or future harm to physical or mental development of the child.

Currently in Colorado we have many parents that are in the military reserves. Unlike the regular military, these parents may or may not be called into active service and if they are, the service will be temporary and any orders for deployment will be considered interim.

So, lets say that Sally is the the Army Reserves and she has the majority of parenting time for her three year old son. Sally is called up for active duty and sent to Afghanistan under a one year interim order. Sally then asks her ex-husband Joe if he will take care of their son while she is away and Joe agrees.

When Sally returns at the end of her tour of duty (all in one piece; thank god), she is expecting to get her son back but Joe has decided to bring a motion to modify parenting time stating that his son has been voluntarily integrated into his household over the past year and it is in the childs best interests to stay with him. He is asking to now be the parent with the majority of the parenting time (residential parent).

Normally speaking, if Sally had voluntarily given all parenting time of her three year old son to her ex-husband Joe for one year, he would have a right under CRS 14-10-129 to ask for a modification of parenting time. However, under a recently legislated statute; CRS 14.10-131.3 Sally now has special protection as a military reservist.

CRS 14.10-131.3 Protection for Military Reserve Parents went into effect on August 5th, 2008. Here is the relevant information:

1. You must be a member of the Military Reserves (not the regular military)
2. An agreement to temporary modification of parenting time while deployed does NOT constitute consent to integration of the child into the household of the other parent for purposes of a motion to modify primary residential parent or decision making.
3. Even if there is an interim court order for modification of parenting time during the reservist's absence, that order will be automatically vacated and the original parenting plan put back in place upon the reservists return.
4. This statute doe not prevent orders for modification based on reasons other than deployment.

So, in Sally's case. The Court would reference CRS 14.10-131.3 and deny the motion to modify parenting time because it was soley based on Sally's deployment to Afghanistan. Now that she is back, the original parenting plan goes back into effect.

So, you bought your home before you got married. Only your name is on the title and only your name is on the mortgage. Well then it is your separate property right...even though you are now married right... IF you want to sell the property you can and the proceeds would be your separate property right?...

Well, these questions do not lend themselves to yes/no answers. Lets examine a few possible scenarios and how the law would treat your separate property home.

Marital Interest in Separate Property:
The day you got married your spouse began to acquire a "Marital Interest" in your separately owned home. This interest is equal in value to the increase in value of the home during the marriage. So your spouse does have an interest in your separately owned home if the market value has increased during the marriage.

Commingling of Separate Funds with a Marital Asset:
Lets say that you sell your home that you owed separately and you and your new spouse purchase a home together. You take the money that you earned through the sale of your house and put it in as a down payment on the new marital home that you own together with your spouse. That money was your separate money but you have now commingled it with your new marital home. The law would presume this money was a gift to the marriage and the new home is marital property to be divided if you were to get a divorce. You might be able, during a divorce, to bring sufficient evidence that this was not meant to be a gift to the marriage and if the money is traceable, you might be able to overcome the presumption that the money was a gift to the marriage.

Keeping your Separate Property Separate:
If you sell a home that is your separate property during your marriage (or any separate property for that matter) you can keep that property separate by putting the proceeds into a separate account with only your name on it. You can invest that money in a separate account. The only part that would become marital is the increase in value of money or investment during the marriage. You could also buy another house in your name only with those proceeds and it would remain separate property.

Selling your Separate Property Home during your Divorce:
If you are in the process of getting divorced you might not be able to sell your separate property home without the consent of your spouse because there is an automatic injunction during a Colorado divorce against disposing of marital property. If there has been an increase in value in your home during the marriage, then your spouse has a marital interest and you cannot sell during the divorce process without their consent.

Early Neutral Evaluations have been part of Colorado law for some time as part of the Colorado Dispute Resolution Act 13-22-302 (2), however the Early Neutral Evaluation practice has only recently been adapted to family law cases and specifically to child custody cases.

Question:
How are Early Neutral Evaluations(ENE's) used in Child Custody matters?

Answer:
The ENE model works as follows: Early in the divorce process the parties meet with a team of two evaluators, one man and one woman, usually one is an attorney and the other a therapist. Both evaluators should have significant experience with child custody matters. The evaluators set up a three hour session where they meet with each party to hear their position and the concerns relating to parenting time and decision making that are causing conflict between them. Each side also shares their feelings and frustrations. After a few rounds back and forth with requests for more information and an opportunity for each party to address the concerns of the other, the evaluators then give their expert assessment of the case. The parties are provided feedback about the circumstances of the case and what would be a likely outcome if the case were to be subjected to a full, court ordered parenting evaluation. The ENE evaluation team will then make settlement suggestions and assist in mediating a settlement if needed.

The purpose of Early Neutral Evaluations is to help parties reach an early settlement of their divorce or separation that satisfies both of their interests and benefits the children.

The Pro's:
If an ENE evaluation assists in coming to a settlement early in a child custody dispute, it can prevent a long and expensive custody fight between the parties and can allow for a much stronger foundation for a workable post divorce family. ENE's, like mediation, are confidential in that the evaluator cannot be called to court to testify. ENE's are specifically designed to allow for early settlements of disputes rather than serve as evidence gathering devices for trial. This way the parties have the freedom to communicate openly without concern of how it would show up later at trial. This makes authentic communication more likely and settlement more probable.

The State of Minnesota has been using ENE's in custody disputes for quite some time. One Minnasota divorce attorney, Gerald Williams, shares the following insight on his blog Minnesota Divorce and Family Law Blog; "ENE is an informal process, in which the parents are not "testifying" and are not under oath. So the evaluators' observations are only as good as the facts they get from the parents. In most cases, the evaluators get an accurate enough understanding of the circumstances to make helpful observations and recommendations. The process bears out the fact that many, full blown custody evaluations reach the same conclusions that ENE evaluators reach during the three-hour session."

The Con's:
There have been some concerns expressed by the Colorado Psychological Association about the ability of the therapist involved in a ENE to gather sufficient data in the 3 hour session to give a valid opinion on child custody. Also, the parties are not under oath and there is no way to judge the veracity of what they are saying. See Ethical Considerations for Psychologists Involved in Early Neutral Assessments by Andrew Loizeaux, Psy.D. and Julie Van Heyningen, Psy.D.

There are two other forms of custody evaluations that are used by the court system to assist the judge in making child custody decisions. In both cases the evaluator speaks to the parties but also may speak to the children, other interested parties and therapists that have worked with the children and with the parents. So their reports are usually based on much larger quantities and perhaps more objective data. This type of reporting is done by Child and Family Investigators (CFI's) or Therapists doing court ordered Parental Evaluations. Parental Evaluations may also include data obtained through psycological testing. These reports are used by the court as evidence and the evaluators can be called to testify.

Conclusions:
ENE's are a great option if they assist in an early resolution to custody disputes but it is very important to understand their limitations. There is only so much evaluation that can occur in a three hour session where the evaluators are only talking to the parties and the parties are not under oath. However, much like mediation, perhaps what is really important is that the people with the custody dispute find common ground and that may ultimately outweigh the need for the full fledged evaluation that occurs through the court later on in the divorce case. After all, it is all about the future of how the family works together and if you can prevent the sometimes permanent fissures in relationship that can occur in a protracted custody fight, perhaps you have done what is best for the family as a whole.