24CA1538 Parental Resp Conc RJAD 05-15-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1538 Montezuma County District Court No. 23DR73 Honorable Todd Jay Plewe, Judge
In re the Parental Responsibilities Concerning R.J.A.D., a Child,
and Concerning Aaron Marcus Ivan Druck,
Appellant,
and
Kathryn H. Kirkland,
Appellee.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE LIPINSKY Johnson and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 15, 2025
Ciancio Ciancio Brown, P.C., Banafsheh Lari, Denver, Colorado, for Appellant
Anne Whalen Gill, LLC, Anne Whalen Gill, Castle Rock, Colorado, for Appellee ¶1 Aaron Marcus Ivan Druck (father) appeals from the district
court’s order partially denying his motion to modify parenting time
as to his child with Kathryn H. Kirkland (mother). We reverse and
remand the case for further proceedings.
I. Background
¶2 In December 2023, the court entered permanent orders
allocating parental responsibilities for the parties’ then-two-year-old
child. Given mother’s desire to relocate to Seattle, the court
implemented a two-part parenting plan. Under the first part of the
plan, applicable until the child started kindergarten, the child
would reside in southwestern Colorado, where both parties lived at
the time of the permanent orders. During that time, the parenting
time schedule would consist of alternating five-day blocks of
parenting time for mother and four-day blocks of parenting time for
father. Under the second part of the plan, beginning in June 2027,
mother would be permitted to relocate with the child to Seattle, at
which time a new parenting time schedule would apply.
¶3 Father moved to modify parenting time four months after the
court entered the permanent orders. In support, he asserted that
mother had recently returned to full-time employment, and
1 accordingly, the child was spending significant time with third-
party childcare providers. Father alleged that, under the
circumstances, it would be in the child’s best interests to spend
more time with him and asked the court for an equal parenting time
schedule or, alternatively, for a right of first refusal when mother
could not care for the child.
¶4 Without holding a hearing, the court entered a written order
denying father’s request for equal parenting time, although the
court set a hearing on his request for a right of first refusal.
Following that hearing, the court also denied the portion of father’s
motion seeking a right of first refusal.
II. Discussion
¶5 Father contends that the court applied the wrong legal
standard when it denied, without a hearing, the portion of his
motion requesting equal parenting time. We agree.
A. Standard of Review
¶6 We review a district court’s decision whether to modify
parenting time for an abuse of discretion. See In re Parental
Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 13, 521 P.3d
1025, 1030. The court abuses its discretion when its decision is
2 manifestly arbitrary, unreasonable, or unfair, or is based on a
misunderstanding or misapplication of the law. In re Marriage of
Bergeson-Flanders, 2022 COA 18, ¶ 10, 508 P.3d 1083, 1085.
Whether the court properly applied the correct legal standard in
ruling on a motion to modify parenting time is a question of
statutory interpretation that we review de novo. In re Marriage of
Schlundt, 2021 COA 58, ¶ 25, 489 P.3d 781, 786; In re Parental
Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15, 280 P.3d
78, 81-82.
B. Modification of Parenting Time
¶7 Father argues that his request for equal parenting time was
subject to the best interests of the child standard under section
14-10-129(1)(a)(I), C.R.S. 2024. Therefore, he asserts that, by
applying the endangerment standard under section 14-10-129(2),
the court improperly denied his request without a hearing. We
agree.
¶8 Section 14-10-129(1)(a)(I) provides that, with certain
exceptions, a court may modify parenting time when doing so
“would serve the best interests of the child.” Section 14-10-129(2)
specifies the circumstances in which a court may “modify a prior
3 order concerning parenting time that substantially changes the
parenting time as well as changes the party with whom the child
resides a majority of the time.” When section 14-10-129(2) applies,
a court may not modify parenting time unless it determines, as
relevant here, that the child’s environment “endangers the child’s
physical health or significantly impairs the child’s emotional
development and the harm likely to be caused by a change of
environment is outweighed by the advantage of a change to the
child.” § 14-10-129(2)(d); see also In re Marriage of Newell, 192
P.3d 529, 533 (Colo. App. 2008) (summarizing the two standards).
¶9 The court held that the endangerment standard under section
14-10-129(2) applied to father’s request for equal parenting time,
reasoning that “[c]hanging the current parenting time schedule to a
50/50 parenting time schedule would result in both parents
becoming the primary parent,” which the court concluded, quoting
section 14-10-129(2), would change “the party with whom the child
resides . . . a majority of the time.”
¶ 10 Even assuming, without deciding, that a shift from father
having approximately 44 percent of the parenting time to 50 percent
of the parenting time constitutes a substantial change, we conclude
4 that the court erred because equal parenting time would not
“change[] the party with whom the child resides a majority of the
time.” § 14-10-129(2).
¶ 11 Specifically, father did not seek to change the majority-time
parent from mother to him, meaning that his proposed change
would not have replaced mother with him. And the governing
phrase in section 14-10-129(2) — “changes the party” —
contemplates substituting the party with whom the child resides a
majority of the time and does not apply to a modification resulting
in an equal split of parenting time. See also Newell, 192 P.3d at
533 (holding that section 14-10-129(2) was inapplicable where the
“parenting time proposed . . . would not have resulted in the child’s
residing with father, rather than mother, a majority of the time”).
Thus, father’s request for equal parenting time was not subject to
the endangerment standard under section 14-10-129(2), and the
court erroneously denied the portion of his motion seeking equal
parenting time on that basis.
¶ 12 Mother contends that, even if the court incorrectly applied the
endangerment standard instead of the best interests standard, we
should nevertheless affirm because any error was harmless. See
5 C.A.R. 35(c) (defining harmless error as “any error or defect not
affecting the substantial rights of the parties”). But we are not
convinced the court’s error was harmless given that it denied father
a hearing based on its application of the incorrect standard.
¶ 13 To receive a hearing on a motion to modify parenting time, the
moving party must establish adequate cause that the modification
is in the child’s best interests. See § 14-10-132, C.R.S.
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24CA1538 Parental Resp Conc RJAD 05-15-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1538 Montezuma County District Court No. 23DR73 Honorable Todd Jay Plewe, Judge
In re the Parental Responsibilities Concerning R.J.A.D., a Child,
and Concerning Aaron Marcus Ivan Druck,
Appellant,
and
Kathryn H. Kirkland,
Appellee.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE LIPINSKY Johnson and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 15, 2025
Ciancio Ciancio Brown, P.C., Banafsheh Lari, Denver, Colorado, for Appellant
Anne Whalen Gill, LLC, Anne Whalen Gill, Castle Rock, Colorado, for Appellee ¶1 Aaron Marcus Ivan Druck (father) appeals from the district
court’s order partially denying his motion to modify parenting time
as to his child with Kathryn H. Kirkland (mother). We reverse and
remand the case for further proceedings.
I. Background
¶2 In December 2023, the court entered permanent orders
allocating parental responsibilities for the parties’ then-two-year-old
child. Given mother’s desire to relocate to Seattle, the court
implemented a two-part parenting plan. Under the first part of the
plan, applicable until the child started kindergarten, the child
would reside in southwestern Colorado, where both parties lived at
the time of the permanent orders. During that time, the parenting
time schedule would consist of alternating five-day blocks of
parenting time for mother and four-day blocks of parenting time for
father. Under the second part of the plan, beginning in June 2027,
mother would be permitted to relocate with the child to Seattle, at
which time a new parenting time schedule would apply.
¶3 Father moved to modify parenting time four months after the
court entered the permanent orders. In support, he asserted that
mother had recently returned to full-time employment, and
1 accordingly, the child was spending significant time with third-
party childcare providers. Father alleged that, under the
circumstances, it would be in the child’s best interests to spend
more time with him and asked the court for an equal parenting time
schedule or, alternatively, for a right of first refusal when mother
could not care for the child.
¶4 Without holding a hearing, the court entered a written order
denying father’s request for equal parenting time, although the
court set a hearing on his request for a right of first refusal.
Following that hearing, the court also denied the portion of father’s
motion seeking a right of first refusal.
II. Discussion
¶5 Father contends that the court applied the wrong legal
standard when it denied, without a hearing, the portion of his
motion requesting equal parenting time. We agree.
A. Standard of Review
¶6 We review a district court’s decision whether to modify
parenting time for an abuse of discretion. See In re Parental
Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 13, 521 P.3d
1025, 1030. The court abuses its discretion when its decision is
2 manifestly arbitrary, unreasonable, or unfair, or is based on a
misunderstanding or misapplication of the law. In re Marriage of
Bergeson-Flanders, 2022 COA 18, ¶ 10, 508 P.3d 1083, 1085.
Whether the court properly applied the correct legal standard in
ruling on a motion to modify parenting time is a question of
statutory interpretation that we review de novo. In re Marriage of
Schlundt, 2021 COA 58, ¶ 25, 489 P.3d 781, 786; In re Parental
Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15, 280 P.3d
78, 81-82.
B. Modification of Parenting Time
¶7 Father argues that his request for equal parenting time was
subject to the best interests of the child standard under section
14-10-129(1)(a)(I), C.R.S. 2024. Therefore, he asserts that, by
applying the endangerment standard under section 14-10-129(2),
the court improperly denied his request without a hearing. We
agree.
¶8 Section 14-10-129(1)(a)(I) provides that, with certain
exceptions, a court may modify parenting time when doing so
“would serve the best interests of the child.” Section 14-10-129(2)
specifies the circumstances in which a court may “modify a prior
3 order concerning parenting time that substantially changes the
parenting time as well as changes the party with whom the child
resides a majority of the time.” When section 14-10-129(2) applies,
a court may not modify parenting time unless it determines, as
relevant here, that the child’s environment “endangers the child’s
physical health or significantly impairs the child’s emotional
development and the harm likely to be caused by a change of
environment is outweighed by the advantage of a change to the
child.” § 14-10-129(2)(d); see also In re Marriage of Newell, 192
P.3d 529, 533 (Colo. App. 2008) (summarizing the two standards).
¶9 The court held that the endangerment standard under section
14-10-129(2) applied to father’s request for equal parenting time,
reasoning that “[c]hanging the current parenting time schedule to a
50/50 parenting time schedule would result in both parents
becoming the primary parent,” which the court concluded, quoting
section 14-10-129(2), would change “the party with whom the child
resides . . . a majority of the time.”
¶ 10 Even assuming, without deciding, that a shift from father
having approximately 44 percent of the parenting time to 50 percent
of the parenting time constitutes a substantial change, we conclude
4 that the court erred because equal parenting time would not
“change[] the party with whom the child resides a majority of the
time.” § 14-10-129(2).
¶ 11 Specifically, father did not seek to change the majority-time
parent from mother to him, meaning that his proposed change
would not have replaced mother with him. And the governing
phrase in section 14-10-129(2) — “changes the party” —
contemplates substituting the party with whom the child resides a
majority of the time and does not apply to a modification resulting
in an equal split of parenting time. See also Newell, 192 P.3d at
533 (holding that section 14-10-129(2) was inapplicable where the
“parenting time proposed . . . would not have resulted in the child’s
residing with father, rather than mother, a majority of the time”).
Thus, father’s request for equal parenting time was not subject to
the endangerment standard under section 14-10-129(2), and the
court erroneously denied the portion of his motion seeking equal
parenting time on that basis.
¶ 12 Mother contends that, even if the court incorrectly applied the
endangerment standard instead of the best interests standard, we
should nevertheless affirm because any error was harmless. See
5 C.A.R. 35(c) (defining harmless error as “any error or defect not
affecting the substantial rights of the parties”). But we are not
convinced the court’s error was harmless given that it denied father
a hearing based on its application of the incorrect standard.
¶ 13 To receive a hearing on a motion to modify parenting time, the
moving party must establish adequate cause that the modification
is in the child’s best interests. See § 14-10-132, C.R.S. 2024; In re
Marriage of Jones, 703 P.2d 1328, 1329 (Colo. App. 1985); In re
Marriage of Davis, 602 P.2d 904, 905 (Colo. App. 1979). The
threshold for adequate cause is not high. For example, the moving
party can meet the threshold solely by alleging a general lack of
parental cooperation. In Interest of D.R.V-A., 976 P.2d 881, 883
(Colo. App. 1999). However, the motion must comply with C.R.C.P.
7(b)(1) by identifying with particularity the grounds on which the
motion is based. See In re Marriage of Wollert, 2020 CO 47, ¶ 28,
464 P.3d 703, 710-11 (recognizing that the particularity required by
C.R.C.P. 7(b)(1) is not “an especially demanding standard” but is
one designed to give notice of the grounds in support of relief).
¶ 14 In his verified motion to modify parenting time, father alleged
that it would be in the child’s best interests to spend more time
6 with him instead of with third-party childcare providers, given
mother’s recent return to full-time employment. While mother
suggests that the recently issued permanent orders had already
anticipated her return to full-time employment when allocating
parenting time, we cannot locate any place in the permanent orders
supporting such an assertion.
¶ 15 Because father alleged adequate cause for modifying parenting
time in the child’s best interests, we cannot say that the court’s
error in denying father’s request for equal parenting time without a
hearing was harmless. See § 14-10-132; Jones, 703 P.2d at 1328-
30 (holding that adequate cause is established by showing that,
based upon facts arising after the decree, a change in the child’s
circumstances has occurred, possibly requiring modification to
serve the child’s best interest); see also In re Marriage of Finer, 893
P.2d 1381, 1388 (Colo. App. 1995) (noting that determining best
interests “cannot be accomplished without a hearing”); D.R.V-A.,
976 P.2d at 883-84 (concluding that the district court erred by
continuing to deny a hearing on a parent’s requests to modify
parenting time).
7 ¶ 16 Given our reversal of the court’s decision not to set a hearing
on father’s request for equal parenting time, we do not consider
father’s due process claim or other contentions. And in remanding
this case for a hearing on father’s request for equal parenting time
under section 14-10-132, we express no opinion as to the merits of
father’s request.
III. Appellate Attorney Fees
¶ 17 Mother requests an award of her appellate attorney fees under
section 19-4-117, C.R.S. 2024, which governs the allocation of
attorney fees and costs under the Uniform Parentage Act. But
father initiated and maintained this allocation of parental
responsibilities proceeding under the Uniform Dissolution of
Marriage Act, § 14-10-123, C.R.S. 2024, and the Uniform Parentage
Act has at no time been applied to this case. Accordingly, we deny
mother’s request for appellate attorney fees because she has failed
to identify a legal basis for such an award. See C.A.R. 39.1
(requiring the party seeking appellate attorney fees to “explain the
legal and factual basis” for an award).
8 IV. Disposition
¶ 18 Those portions of the order denying father’s request for equal
parenting time are reversed, and the case is remanded for further
proceedings consistent with this opinion. Those portions of the
order not challenged on appeal remain undisturbed.
JUDGE JOHNSON and JUDGE MOULTRIE concur.