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In re Parental Responsibility Concerning S.Z.S.

2022 COA 105. No. 21CA1760. Modification of Parenting Time—Child’s Integration with Parental Consent.

September 8, 2022

In 2017, a magistrate entered permanent orders allocating parental responsibilities for the child between mother and father. Mother received primary residential care and sole decision-making responsibility, while father received parenting time during alternating weekends and school breaks. Mother subsequently moved to Minnesota, and the magistrate approved a modified parenting plan under which the child lived with mother during the school year and father had parenting time during the child’s school breaks. In summer 2018, the parties agreed that the child would live primarily with father and attend first grade in Colorado. The magistrate approved this modified plan. In summer 2019, the parties agreed that the child would remain with father and complete second grade in Colorado, but that the child would return to school in Minnesota with mother in fall 2020. The magistrate approved the parties’ written stipulation memorializing this agreement. In August 2020, father sought to have the child remain with him in Colorado. The magistrate ordered the parties to resume their previous parenting time plan, and the child returned to Minnesota. Father then filed a motion to modify parenting time, arguing that over the previous two years the child had been integrated into his family with mother’s consent and that it was in the child’s best interests to reside primarily with him during the school year. The magistrate granted father’s motion. The district court adopted the portion of the order modifying parenting time, and in a later order, it adopted the parties’ stipulation to joint decision-making responsibility.

On appeal, mother argued that the magistrate failed to apply the legal standard for consensual integration when issuing his ruling and that the record did not establish that the child had been integrated into father’s family with mother’s consent. When a parent seeks to modify parenting time to change the parent with whom the child primarily resides, the court must retain the prior parenting time order unless circumstances have changed and the child has been integrated into the family of the parent seeking modification with the other parent’s consent. This consent is satisfied when the other parent voluntarily places the child with the noncustodial parent and permits the child to become integrated into the new family. Here, even though the parties contemplated only a temporary change in the child’s custodial arrangement, the totality of the circumstances shows that mother consented to the child’s integration into father’s home and family. While the magistrate made no specific finding regarding mother’s consent, the magistrate’s findings demonstrate that he applied the correct law concerning the child’s integration with mother’s consent and considered these circumstances when determining that modifying parenting time was in the child’s best interests.

Mother also contended that the magistrate erred by modifying decision-making responsibility. However, the parties’ joint decision-making responsibility stipulation resolved this issue; it was adopted by the district court after the magistrate’s ruling and thus renders this issue moot.

The appeal was dismissed in part, the court’s order adopting the magistrate’s ruling modifying parenting time was affirmed, and the case was remanded for further proceedings on mother’s request for appellate attorney fees and costs.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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