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In re the Marriage of Schlundt and Fillingame.

2021 COA 58. No. 19CA1956.  Family Law—Post-Decree—Parenting Time—Enforcement of Parenting Time—Endangerment Standard.

April 29, 2021

Mother was designated the primary residential parent for the parties’ minor child but alternated parenting time with father on a weekly basis. Thereafter, both parties moved to relocate with the child, and the district court granted mother’s request to relocate with the child to Florida. Six months later, father moved to enforce parenting time under CRS § 14-10-129.5, contending that mother was refusing to communicate with him and denying him parenting time, and the child was endangered in her care. Father requested that he be designated the child’s primary parent. The court granted father’s request after a hearing.

On appeal, mother argued that the district court failed to properly apply the endangerment standard to father’s motion to enforce parenting time. If a parenting time modification substantially changes parenting time and changes the parent with whom the child resides a majority of the time, the court must apply CRS § 14-10-129(2). Here, the existing parenting time order did not specify that the child’s primary residence would be changed based on mother’s behavior, so there was no such provision to enforce. Thus, although father ostensibly brought an enforcement motion, he did not seek to enforce a provision of the existing order allowing for a change in the child’s primary residence. Rather, he asked to modify the existing order to that effect pursuant to § 14-10-129.5(2)(b). Therefore, § 14-10-129(2) applies to his request, including the endangerment standard under § 14-10-129(2)(d), because it involves a change in the child’s primary residence. Though the district court purportedly used the endangerment standard, it erred in applying that standard, and its findings under the statute were insufficient to support the order changing the child’s primary residence.

The order was reversed and the case was remanded with instructions for reconsideration of father’s request to modify parenting time and the child’s primary residence.

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

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