By: Jessica A. Saldin
A prior blog post of mine discussed recent, and upcoming, changes to the child support statute and its potential impact on Colorado family law cases. This blog post will discuss additional changes that I believe still need to be made by the Colorado Legislature to our family law statutes, for both clarity and consistency.
First, one glaring needed change regards voluntary unemployment considerations. Prior to the recent child support statutes, a parent could not be considered voluntarily unemployed or underemployed if they were caring for a child of the parties under the age of 30 months. However, one of the recent changes to the child support law was to change that age to 24 months. The maintenance statute has not been similarly changed. This could lead to disparate results in cases that involve both maintenance and child support. For example, if a parent is not working because they are caring for a 27 month old child, that parent could be imputed income for the calculation of child support, but would still not be imputed income for the calculation of maintenance. It is unclear whether this disparity was the intention of the legislature or simply an oversight. However, it is my opinion that it was likely an oversight that will be rectified. The child support statute basically indicates the legislature does not believe it is equitable for a parent to pay increased child support due to the other parent’s unemployed if the parties’ child is older than 2 years. It seems unlikely that the legislature would still find it equitable for a parent to pay increased spousal support (supporting the other parent, more than the child) when it is not equitable to pay increased child support under the same circumstances.
Another issue that needs clarification is the allocation of the first $250 per child per year in uninsured medical expenses. The statute mandates that extraordinary medical expenses be divided between the parties in proportion to their incomes. Extraordinary medical expenses are defined as medical expenses, not covered by insurance, greater than $250 per child per year. However, the statute does not define or allocate responsibility for the first $250 in uninsured medical expenses per child per year. It is standard practice for the court to allocate responsibility for the first $250 to the parent receiving child support. In circumstances where the parties share 50/50 parenting time and there is little to no child support, it is also common for the court to divide the first $250 between the parties as well. However, none of this is defined in the statute. The child support statute was amended so that, beginning in 2020, mandatory school fees are divided between the parties. Therefore, it seems clear that the first $250 of uninsured medical expenses is another area that needs to be added/more clearly defined.
An additional area that could use some clarity is not a financial area. Parties to Colorado custody cases could benefit from clarification as to the enforcement of decision making responsibility and/or other parenting plan orders. Decision making responsibility is one component of what now comprises the allocation of parental responsibilities (formerly known as “custody”). Decision making responsibility allocates who makes major decisions for the minor child- whether it is mother, father or both. Major decisions fall into the categories of education, non-emergency medical, religious and extracurricular activity decisions. If there is joint decision making responsibility that means the parties have to agree before they can proceed with any given decision. However, there are instances where one parent will still make a unilateral decision, in violation of the order. Typically, if a court order is violated, the way to enforce such order is by filing a contempt action. However, contempt actions are limited because they only allow a court to remedy a violation, or simply enter sanctions because a person’s actions were so offensive to the court. Sometimes those options do not fully resolve a custody case.
This could be why C.R.S. 14-10-129.5 was instituted. This statute offers parties a separate law under which to seek remedies if a parenting time order is violated. The benefit of filing an enforcement action under this statute, instead of a contempt action, is that it allows the court to enter far more orders- including an order imposing additional terms and conditions on the prior order, an order modifying the prior order, an order requiring the parties to attend a parental education program, an order for family counseling, an order requiring the violating part to post a bond to secure future compliance, and any other order that may promote the best interest of the child, among other things. The downside is that this statute is specifically tailored to parenting time violations. If a parent violates a decision making order there is not a comparable statute. The parent seeking to enforce the allocation of decision making responsibility only has contempt available to them. Unfortunately, contempt does not always suit the situation. For example, if a party gets braces for the child without the other parties’ consent it may not benefit the child to have the braces then removed but that may be the only way to remedy the violation through contempt. Additionally, beyond decision making responsibility and parenting time, there are other orders that often need to be enforced for which contempt is not sufficient. For example, if the parties’ parenting plan states that neither party shall influence the child negatively against the other parent, and one parent gets knowledge that the other parent spoke negatively about them to the child, a contempt action would basically only allow the court to tell the parent to make sure that does not happen again (or issue a fine or jail sentence if their behavior was so offensive to the court). If a court could enter the remedies available in C.R.S. 14-10-129.5, though, they would have significantly more authority to enforce the orders in the best interest of the child. Therefore, it may be beneficial to expand C.R.S. 14-10-129.5 to any violations of a custody order.
A little clarity or shoring up of statutory gaps could go a long way in making things easier for both Denver family law lawyers and the clients we represent.