Denver, CO (Law Firm Newswire) March 27, 2013 – A request to retroactively modify child support highlights the care needed when making custody changes.
A Colorado father was faced with a lengthy appeals process after being denied his motion to retroactively modify a child support order based on the change in physical care of his child.
In 2000, a Colorado father was ordered to pay child support to the mother of the child. In 2008, the mother filed contempt sanctions against the father for failure to pay child support from July 2000 to April 2005. The father argued that there was an unwritten agreement between the two regarding a change in care and, in fact, the father had been the primary parent of the children from July 2000 to March of 2003, and from September 2005 through the child’s emancipation in 2005.
“Child custody arrangements can and do change all the time outside the court system,” noted Bill Thode, Denver custody lawyer. “The problem arises when one party has a change of mind or decides that an agreement no longer works for them, and then it becomes a ‘He said, she said’ situation for the courts. If you are changing your custody agreement, meet with your attorney and get it in writing – that way you protect everyone’s interests down the road.”
The change in physical care, argued the father, meant there should be a corresponding retroactive modification of child support during the periods of time that he was raising the child, and which should be reflected in the court’s consideration of contempt. The trial court found without a hearing, though the father repeatedly asked for one, that without a mutual agreement which reduced the child support agreement based on physical custody, the court could not determine if such an agreement had existed. The father contended that the court erred in failing to hold a hearing to determine the issue of fact. The Court of Appeals agreed.
A modification of child support is effective as of the date the agreement takes place; when the physical custody change occurs, that is also when the modifications change. In other words, the court agreed that the change in custody should be reflected in the change in child support payments. And though there may be a mutually-agreed-upon modification to physical custody, nowhere it is indicated that this change must be in writing.
Thode Law Firm, P.C.
201 Steele Street, Suite 201
Denver, CO 80206
Call: (303) 330-0425