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Child Custody Case Study - Part 5 - Final Part

Tuesday, 10 February 2015

This is the final article in a 5 part case study reviewing a battle for child custody in Colorado. If you'd like to review this series from the beginning start with Child Custody Case Study - Part 1 or review the case study facts.

Judge Bristol changed both Maggie Bright's residential custody and decision-making authority without applying Colorado law necessary when prior court orders are modified.

Was there any way that Judge Bristol's decision complied with Colorado law for modifications?
When any Colorado trial court first wades into the muck that is contested child custody when parents separate, the rules applied to key issues like decision-making and residential custody are vastly different than if those decisions are changed years after the parents' separation is finalized.
At first glance, however, that difference in Colorado law didn't seem to apply to Maggie Bright's case.

Even though Judge Bristol entered orders in 2008 approving shared decision-making and residential custody of Ethan to Maggie, he seemed to ignore those orders when it was time to make the big new decisions in 2012.

Why were the 2008 orders ignored? Was Judge Bristol so hoodwinked by the opinions and testimony of his court-appointed evaluator that he just flat-out neglected to apply the law? Was it possible that he harbored a grudge against Maggie Bright for going to the higher court in 2009 in the first place, still feeling the fresh sting of appellate rebuke?

She hoped not. But the different Colorado laws applied to pre and post-decree litigation were too much for Maggie Bright to manage. She would need the firm hand of a hard-working family law firm like Marrison Family Law to guide her through the quagmire.

The 2008 prior orders that were already in place

Maggie Bright and Steven Smith had already gone around the block with Judge Bristol in 2008. By the time the courtroom and negotiations and hearings were completed back then, Maggie had been awarded residential custody of Ethan, and both parents had agreed to share decision-making.

After the 2008 orders, both Maggie and Steven later relocated to different states.

However, Maggie Bright's appeal asking Judge Bristol to decide final parenting time wasn't decided until 2011, a full three years after the 2008 orders were entered.

The standard that the Child Custody Court did apply, and its findings

The Bristol court looked at all of the decisions – primary residential custody, parenting and even visitation – through the basic legal lens of "what is in the best interests of the child?"1

After testimony from Dr. Holmes and other evidence, the court ruled that both residential custody should be changed, and decisionmaking should rest solely with Steven Smith.

But in its order, Judge Bristol failed to explain the factors he considered in his decision, leaving a wholly inadequate recitation of how he reached the decisions that he did.

The problem was that when these issues impacted the 2008 orders that were already in place, Marrison Family Law argued that Judge Bristol was legally required to consider several other factors.

The additional Colorado law and factors Judge Bristol should have considered

When any final decision of Judge Bristol would effectively move Ethan out of state to live in Iowa with his father, and modify a prior court order, the court should have considered Colo. Rev. Stat. 14-10-129, and Colo. Rev. Statute 14-10-131, as well as 14-10-124.

One pivotal factor that Judge Bristol failed to adequately consider was how such a dramatic removal of Ethan would affect his relationship with Evan, his sibling.

Courts and experts throughout the country have extolled the value of the sibling relationship to help keep continuity, support and love during times of family transition.

And yet there was no similar case law about sibling separation in Colorado that was directly on point. Even case law around the country was somewhat limited.

Given the obvious harm that occurs when brothers or sisters are ripped apart, why didn't more comparable case law exist?

The judge a 2008 California case in re the Marriage of Lamusga2 suggested that the lack of caselaw was due to the fact that most siblings are left together after families split – courts normally exhibit the good sense to recognize that crumbling families should keep intact all of the strong relationships that they can.

In the Lamusga case, the court also referenced another well-respected article by Shumaker, Miller and Ortiz3, which noted that "Ponzetti and James (1997) even go so far to suggest that sibling bonds are as important to a child's development as the bonds between parents and siblings."

Judge Bristol's ruling did mention that Ethan would have a new stepbrother in Iowa, which was considered a plus. But he failed entirely to address the gaping hole of emotion and instability that would be left by the complete loss of contact with his current sibling Evan.

If Steven Smith's custody issues and the law had been applied correctly, Marrison Family Law argued that Judge Bristol should have factored in these additional questions, which were noted in the Colorado case Spahmer v. Gullette4:

What if anything changed between 2008, when custody decisions were earlier made, and then in 2012?

When the initial custody decisions were decided, the factors of a child's best interest are paramount and exclusive. In a removal case, interests and circumstances of the parents play a greater role.

There is a higher standard of proof for removal due to the vested rights that a parent already has in the existing parenting agreement.

Some notice was required to modify Maggie Bright's residential custody and decision-making
Maggie Bright was entitled to know what she was up against. The entire process of civil and criminal law is tied to people with and without attorneys being able to know the charges against them, and have some time to prepare and defend themselves.

Dr. Holmes' report proposing that Steven Smith be given residential custody and decision-making authority was provided 30 days before trial, which came as a shock to the young mother and left her scrambling. Maggie Bright asked the court for more time and to have Dr. Holmes prepare a supplemental report, but the request was refused.

By failing to give Maggie Smith notice, the court took away Maggie's ability to collect additional evidence and present both additional witnesses and documents that could have kept Ethan in her custody, and denied her basic due process.

The Appellate Court's decision regarding whether modification statutes should be applied

When you fight the good fight, every legal argument doesn't always go your way.

The appellate court found that when Maggie Bright successfully appealed the trial court's earlier 2008 order, that had actually left open and unresolved Judge Bristol's preliminary determinations of residential custody for Maggie and shared decision-making.

So Maggie Bright and Steven Smith effectively went into the March, 2012 hearing with a clean slate, with no presumption given to Mother or Father. They were on equal footing, so a best interests of the child examination was appropriate, said the appellate court.

However, it was still important that Marrison Family Law had brought to the attention of the appellate court all of the information about sibling separation and the damage it caused, which can always help push an appellate court which may be on the fence in a close decision between two parties to find in Maggie Bright's favor.

And the appellate court did find in Maggie Bright's favor.

It vacated Judge Bristol's orders from March, 2012 granting Steven Smith residential custody and sole decision-making authority, and gave Maggie Bright another chance to present her evidence.

Colorado's Best Interests of the Child factors, Section 14-10-124(1.5), C.R.S. 2001.
in re the Marriage of Lamusga, 32 Cal.4th 1072 (2004).
The Forgotten Bonds: The Assessment and Contemplation of Sibling Attachment in Divorce and Parental Separation, by David M. Shumaker, Christopher Miller and Carolyn Ortiz, 2011.
4 Spahmer v. Gullette, 113 P.3d 158, (Colo. 2005).

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