Have you agreed to change your parenting time/custody order?

Have you agreed to change your parenting time/custody order?  Prepare for changes to the child support order.

Many Coloradans have endured the hardships associated with dissolution of marriage and allocation of parental rights actions, and those hardships do not necessarily stop after a Final Orders Hearing.  One of the primary sources of ongoing post-decree conflict is derived from disputes over child support.

In Colorado, courts are bound by legal presumptions and guidelines that almost always require one parent to pay child support to the other.  Generally speaking, the primary factors the court must consider in determining child support are a parent’s gross monthly income and the number of overnights a parent has with their child or children.  These primary factors, although well-reasoned and settled, often cause unintended collateral consequences.

As you can imagine, changes to a parenting plan or order are often necessary to accommodate a change in circumstances (e.g., one parent’s relocation to a different proximity, an older child’s desire to live with the other parent, or a temporarily detrimental living situation).  Acknowledging that a change would be in the best interests of the child, good parents often agree to significant changes in the parenting plan.  In so doing, good parents may be walking into a financial nightmare.

If you are a primary residential parent exercising the lion’s share of overnights, receiving child support payments and you agree to swap roles with the other parent, the moment you swap roles you may become the parent that owes child support.  The highlighted portion above is important to note because it can significantly raise the stakes on subsequent child support modifications.  Let me explain.

Parents that have historically paid child support continue to do so even after they receive a significant increase in number of overnights with the child.  This is wise because until an order is modified, the obligation remains intact.  For fear of hiring a lawyer or fighting in the legal system, parents often leave child support orders unmodified for a long period of time.  This type of practice creates high risk for both parents should a modification eventually be filed.  A current lack of clarity in the law fuels that risk.

There are two appellate cases that address the phenomenon described above:  In re Marriage of Emerson and In re Marriage of White.  Each case interprets the guiding statute, Colorado Revised Statute (CRS) §14-10-122(5), differently.  The most recent case (White, 2010) says almost the exact opposite of what is said in the earlier case (Emerson, 2003).  Neither decision has authority over the other, so attorneys are left in a difficult situation advising clients.  Emerson is helpful for parents that haphazardly continue to pay child support despite a prior significant change in overnights.  It allows them to potentially recover child support entitlements as of the moment there was a mutually agreed change in the parenting plan.  If a modification is not filed for a number of years, the parent that was unwittingly accepting child support payments is possibly accruing a substantial liability – retroactive child support.  On the other hand, White is helpful for parents that continue to receive child support despite a prior significant change in overnights.  It allows child support to be applied retroactively only to the date of filing the modification.  No doubt, conflicting concepts of equity provide a backdrop to the problem:  one parent receives a windfall or one party is rewarded for inaction.  Neither outcome seems fair, but the courts have to pick a poison.

Simply stated, if you are a parent that pays child support and you become the primary residential parent through mutual agreement, you should take it on the chin, talk to an attorney, and probably get yourself into court.  If you are a parent that receives child support and you agree to a significant change in the parenting plan you can hope for the best (a modification motion will never be filed) and plan for the worst (a modification motion is filed late and the Court applies Emerson) with interest.