In Re the Marriage of Wall

Citations: 851 P.2d 224; 1992 WL 301821Docket: 91CA1882

Court: Colorado Court of Appeals; May 10, 1993; Colorado; State Appellate Court

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Frank N. Wall appeals the modification of a custody order that shifted from sole custody to joint custody of his children, which was granted by the Colorado Court of Appeals on October 22, 1992. The original marriage dissolution in 1987 established joint custody, later modified to sole custody for the father. The mother, Karen S. Wall, sought to revert to joint custody, amending her motion at the hearing without objection from the father, who did not request a continuance. The trial court evaluated the modification under the best interest standard and found that the additional proof requirement of physical endangerment or significant emotional impairment, outlined in C.R.S. 14-10-131(2), was not met. The father argued that this requirement should apply when modifying from sole to joint custody, claiming the statutes were conflicting. However, the court emphasized the importance of legislative intent and the need to harmonize the statutory provisions. The court discussed the historical context of joint custody laws in Colorado, noting that until 1983, joint custody was not recognized. The legislative history indicated a preference for joint custody, although a proposed Senate Bill aimed at establishing this presumption was not adopted. The court ultimately affirmed the trial court's decision to grant joint custody based on the best interest of the children.

Senate Bill 286, enacted in 1983, established a definition of "joint custody" as shared decision-making authority, allowing for one parent to be designated as a residential custodian. The bill limited courts’ ability to award joint custody to cases where both parties agreed. Although a presumptive preference for joint custody was not adopted, the General Assembly expressed a desire to promote ongoing contact between parents and children post-separation. The bill amended custody modification procedures, stipulating that no new motion to modify sole custody could be filed within two years unless there was evidence that the child's environment posed physical or emotional risks. It also introduced provisions for modifying or terminating joint custody, stating such actions could occur if they served the child's best interests, with similar two-year restrictions on filing motions. In 1987, further amendments allowed trial courts to enter joint custody decrees at either party's request or on the court's own initiative, expanding the factors to assess the child's best interest and differentiating joint decision-making from residential custodianship. Initially, joint custody could only be awarded with parental agreement, but the 1987 amendments empowered courts to grant joint custody over objections, changing the best interest standard from a veto to a more flexible modification standard.

Despite the 1987 amendments to the best interest standard and broadened authority for awarding joint custody without mutual agreement, the General Assembly did not alter the modification standard in 14-10-131.5(4). This standard continues to apply to motions seeking to modify sole custody to joint custody, indicating a legislative intention for a less stringent standard in such cases compared to transferring sole custody from one parent to another. The legislation recognizes that a change from sole to joint custody is less disruptive for the child than a change in sole custody.

In conflicts between statutes 14-10-131 and 14-10-131.5(4), the latter prevails due to its specificity regarding changes from sole to joint custody, as supported by statutory interpretation principles. Previous court interpretations have varied, but this document seeks to harmonize the statutes to fulfill legislative intent. The interpretation suggests that 14-10-131 applies only when changing sole custody from one parent to another, while 14-10-131.5 governs changes to joint custody.

The trial court found no physical danger or significant emotional harm to the children under sole custody but determined that joint custody could work, emphasizing parental involvement in decision-making as crucial for the children's welfare. The trial court's conclusion that joint legal custody was in the children's best interest, outweighing potential harm, is supported by the record and upheld on review. The appeal is not deemed frivolous, and the mother's request for costs and attorney fees is denied. The order is affirmed, with Judges Jones and Marquez concurring.