Divorce at Altitude: A Podcast on Colorado Family Law
Divorce at Altitude: A Podcast on Colorado Family Law
Humphries and Decision-Making | Episode 220
Welcome to Divorce at Altitude, your guide to Colorado family law with attorneys Ryan Kalamaya and Amy Goscha. In each episode, they tackle topics related to divorce and co-parenting, offering insights for navigating the complexities of family law in Colorado.
This week, Ryan and Amy break down one of the most complex aspects of family law: decision-making standards and enforcement in custody cases. They dive into the recent Colorado Court of Appeals case, In re Marriage of Humphries, which addresses the legal standards for modifying decision-making authority post-divorce. Understanding how to approach legal standards—such as the best interest vs. endangerment standards—and knowing which legal motions to file can make a significant difference in these highly charged cases.
Episode Highlights:
- Humphries Case Breakdown: Understanding how the court approaches modifying decision-making authority in high-conflict, post-divorce cases.
- Best Interest vs. Endangerment Standards: Key distinctions and how they impact the court’s decisions on parenting and custody matters.
- Legal Mechanisms & Enforcement: Exploring Colorado’s enforcement statutes and motions to address non-compliance with parenting time.
- Practical Advice: How to reduce post-divorce conflict and work towards decisions that benefit the children’s well-being, even in high-stakes situations.
If you’re navigating a post-divorce custody conflict or a family law professional, this episode provides important insights into the evolving standards in Colorado law.
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What is Divorce at Altitude?
Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.
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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.
Welcome to Divorce At Altittude, a podcast on Colorado family law. I'm Ryan Kalamaya. Each week, along with my business partner and co-host, Amy Goscha, or an expert, we discuss a particular topic related to Divorce or co-parenting in Colorado. In addition, we have created a short series of lessons that will take you through the legal process of Divorce and answer your questions from simple to complex. Divorce isn't easy. The end of a marriage, especially when children are involved, brings a great deal of loss and change. We hope these practical tips and insights will help you on your journey to a new. And better life. Welcome back to another episode of Divorce at Altitude. This is Ryan Kalamaya. This week, I'm joined by my co host Amy. What are we talking about today, Amy?
Amy Goscha:We're talking about the confusing area of legal standards when it comes to decision making and modifying it. So we're going to really break it down based off of a recent case.
Ryan Kalamaya:Indeed, we're going to talk about the Humphreys case. It was a court of appeals case that recently came out that addressed this issue. We've had other episodes where we've talked about decision making from my perspective, Amy, there is one area that is the most confusing in terms of legal standards and it is decision making and what standard applies. But before we get into that. Can you tell listeners and give a little background on the Humphreys case in the context of decision making that we're going to talk about?
Amy Goscha:Sure. And where I'll start is just reminding everyone if they don't know the two standards. So we have what's called the best interest standard, which is easier, easier to prove than an endangerment standard. So those are the two standards that. We, as lawyers, have to look at the court has to look at when deciding whether to modify and establish decision making authority for parents over children. The Humphreys case it was a post decree case, meaning the parties had already been divorced. There had been some previous orders entered. Originally, the parties shared decision making and then a court modified decision making in all areas to mom. The parenting time remained equal from the establishment of the original order. What happened after the first court order is dad filed four post decree motions alleging essentially parenting time violations. There's a enforcement regarding parenting time disputes statute and what the court did is the court ended up allocating changing sole decision making from mom to dad. And so this court of appeals case addresses that. And essentially reversed and remanded it back to the trial court. When it was remanded back to the trial court, Ryan, what did the trial court have to do?
Ryan Kalamaya:The I think a little bit more context might be helpful. The The father in Humphreys claimed that the mom was alienating him and doing all these, awful things. And so he filed a motion for enforcement. And we had a previous episode with Holly Omidy, who's a family law lawyer in Denver, and that's episode 120, and that was enforcing court orders without filing for contempt. And one of the things that we talked about on the episode is that there is. I think an underutilized statute or mechanism under 1410. 129. 5, and that is to enforce a custody order, a parenting plan. So that's what the father did in Humphreys. And but they're 1 of the remedies, or 1 of the statutory provisions says that the court can modify the prior decisions to address the problems that are subject to the motion. What the trial court did was it modified decision making because of these allegations under for parental alienation and all these. And so the Court of Appeals said, you, the trial court, you can't, it doesn't, it's not as expansive this statute as what you are reading into it. And it basically under enforcement mechanisms, you can ask for makeup parenting time. And really it's focused on parenting. Time not decision making because there's a provision in the statute for the enforcement statute, the 129. 5 that says that the court could have a hearing a further hearing to decide modification of decision making. But that in turn requires a separate motion under 14, 10, 131. Yeah, we're talking some super specific legalese and I think that the point. is that the trial court has to be very careful about what it is addressing. So an example would be a motion to restrict. Mom claims that there is some sort of restriction basis and endangerment and there is, various options that a court can do. Same thing for enforcement. And there can be these temporary, Hey, we're going to, calm things down, but then also there are these long term modifications and there's different standards that apply. And you said at the beginning, Amy, the endangerment versus the best interest standard, and that is. Even the judge in a Colorado case can get that wrong. And the Humphreys case, in, in essence, stands for the proposition that if you want to modify decision making, you have to file a motion under 1410. 131 and we've talked about this before, Amy, but just for listeners, what are the different standards? And what are the things that? People should keep in mind when they're modifying decision making.
Amy Goscha:Best interest, there's a whole, we have best interest, there's a whole like list of factors that the court would have to look at. It's what's in the best interest of the children. I, I won't go through every factor, but it's delineated within the statutes, what that means. When it comes to endangerment, we're really looking at placing the children's, emotional state and endangering that and also or physical or physically endangering them. So we're, we're looking at that. It's definitely. Even from the title, just a much higher, standard so I think, like talking about the facts of the case. You can see that parties can get pretty entangled within the court system post decree and you have this dynamic where, mom is being alleged alienating and dad has allegations of, child abuse, so the court did say that, the requisite standards in the Huffrey's case were not met for, child abuse, but I think that happens a lot where there's these allegations. Maybe one parent is a lot stricter. And then the kids don't want to go. The kids are not subject to the parenting time order like the parent is, so the parent is the one that is getting reprimanded. Anyway, I just think looking at that dynamic, and parties have to understand in order to change decision making, it's a high standard.
Ryan Kalamaya:It is, and I think that some of the implications of the Humphrey's case is that lawyers need to be aware of the different standards and the different options and parties do as well. There is, if someone is, Refusing to allow parenting time. We had previous episodes on reintegration therapy that in turn brings up the issue of that there's no parenting time and, or very limited parenting time because a parent could be estranged. And so in that circumstance, you could file an enforcement action saying you need to comply. You parent need to comply with the parenting time orders, but that is for parenting time. And I think people, they just look at. Custody and parenting disputes is all this one big conflict, but really the way the law views it is that there are different buckets or allocations. There's decision making and then there's parenting time and people and lawyers in particular need to really be careful about what it is that They are asking for. I also had, a recent case where the provision there, there's a provision about modification and there's a limitation on modification, once every 2 years, if there is a substantial change in that is being requested but really, I think that. People can they really focus on the short term and this they're in the moment in disputes and they can file an enforcement action, but they also need to think about what are the solutions here? And I think that is the Humphreys case in a nutshell is that they were really focused on. They thought they could obtain these long term solutions, but really the enforcement mechanism was more for the short term. What were the problems that they were doing and what remedies could be ordered by the court, but were really more short term because ultimately the father, what he was asking for was a long term change in decision making. And the Court of Appeals said you can't do that.
Amy Goscha:Yeah, so I think to lawyers, but also judges, making very specific findings, not only knowing the standard, but then making the findings that are requisite under the statute, but also lawyers understanding with specificity what they're asking, the court to do. Maybe in this circumstance, dad's lawyer is the best lawyer. Should have filed a motion to modify decision making under 1 31.
Ryan Kalamaya:Indeed. And one thing, I think it's also a takeaway for parties is that the mom, she was granted sole decision making and, according to the ultimate ruling of the court, switched it back and really, ordered her to pay, I think it was$35,000 in in a civil fine and pay for the attor the father's attorney's fees, which. Given the litigation must have been substantial and you can get that under the enforcement statute under 129. 5. You can also get it with contempt, but when a mom or a party really has sole decision making, if you abuse that and that as the carte blanche power to do whatever you want, and that could be. Alienating, and that's such a loaded term in family law, a parent from the children, it can come back to, to haunt you. And people need to be really careful, but, the, my experience, most cases have joint decision making, but this is a case clearly where post decree, they originally, had joint decision making, equal parenting time, but then they just became so in conflict post decree, which happens. And so people listening to this, they can think that, okay, great. We're aligned, but there can be circumstances. after the decree in which, they can really differ in how they view parenting time. And, one of the solutions that a court can entertain is sole decision making, but how you get there is, really important from a legal perspective. Anything else Amy?
Amy Goscha:No, I think I would just mention, and we did have a previous reintegration therapy, but you can see that, you can imagine that the kids in this case are probably not doing well, right? With all of this post aggrieve conflict between the parents if there are other interventions to go. Have the kids in therapy, to mitigate, these motions, because you can imagine the dad now, he wanted a long term solution and didn't get it so trying to keep people, court has a place but constantly being in court, that's not good for anyone, so I think attorneys, clients, Really need to think about that when they're filing.
Ryan Kalamaya:Indeed, I think Humphrey's that the case is unfortunately representative of that because one of the children was at a behavioral, boarding school in essence. And so you could just surmise that the conflict between the parents is spilling over and impacting the children and their behavior, specifically one of the boys that issue in the Humphreys case. And it's really unfortunate to see that. And a lot of times people can't, they can't they want to just blame the other side and say, you're a failure. You can certainly see that in the Humphreys case, the father is pointing the finger and saying, mom, you are the one that is alienating me, aiding me and like doing these various things that apparently was enough for a trial court to order all these various, things that just. It legally couldn't do that. That's what they kind of case stands for. But the reality is that the father felt like he was, being aggrieved and that is not uncommon. And when people can move forward without conflict, these, research and statistics, show that is ultimately good for the kids. And but then they're also, That if you're in a high conflict post decree or divorce sometimes you have to pursue legal remedies. You just need to make sure you're pulling the right lever, according to the law.
Amy Goscha:Right.
Ryan Kalamaya:I know that was a pretty technical episode and hopefully people were able to track the the kind of importance of Humphreys. We thought it would be helpful to have at least some discussion on decision making and enforcement because it really is an evolving and clear as mud type situation. So hopefully a little bit clear from this Humphreys case, but it is something that we see. See from, time to time in terms of the different remedies and we've had to address the decision making aspect in several cases, in particular recently. Thanks for joining us on Divorce at Altitude and if you enjoyed this episode or learned something from it, please send along to a friend and always let us know if you have questions on Humphreys or decision making. Feel free to reach out with any feedback regarding the topics that Amy and I discussed today. But until next time, thanks for joining us on Divorce at Altitude. hey everyone. This is Ryan again. Thank you for joining us on Divorce at Altittude. If you found our tips, insight, or discussion helpful, please tell a friend about this podcast. For show notes, additional resources or links mentioned on today's episode, visit Divorce at Altittude dot com. Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and. Law or 9 7 0 3 1 5 2 3 6 5. That's aaa.