In re Marriage of Martin

• Court: Colorado Court of Appeals
• Citation: In re Marriage of Martin, 42 P.3d 75 (Colo. App. 2002)
• Decision Date: 03 January 2002
• Docket Number: 00CA0056
• Parties: In re the MARRIAGE OF Kim M. MARTIN, Appellee, and Robert D. Martin, Appellant.

42 P.3d 75

In re the MARRIAGE OF Kim M. MARTIN, Appellee, and

Robert D. Martin, Appellant.

No. 00CA0056.

Colorado Court of Appeals, Div. I.

January 3, 2002.

Cox, Mustain-Wood, Walker and Schumacher, Timothy B. Walker, Littleton, CO, for Appellee.

Patricia Jo Stone, P.C., Patricia Jo Stone, Parker, CO, for Appellant.

Opinion by Judge TAUBMAN.

In this post-dissolution of marriage proceeding, Robert D. Martin (father) appeals the orders limiting the conditions of his parenting time and calculating child support payable to Kim M. Martin (mother) based on his imputed income. We vacate the orders and remand for further proceedings.

In the June 1997 permanent orders, the parties were awarded joint custody of their two daughters, with mother as the primary residential custodian. Father was ordered to pay monthly child support in the amount of $721.66, which was based on his gross monthly income of $3,958 and on the children spending no overnights with him.

Father married his current wife four months later. After that, there were a series of problems among mother, the current wife, and the children.

For several months in 1998, the children spent equal time with each parent, and father paid various amounts of child support as his income fluctuated because of layoffs and temporary employment.

The trial court subsequently terminated father's parenting time after he disobeyed a court order. The animosity among the parties and the current wife escalated when the current wife struck mother in the presence of a sheriff's deputy, who had accompanied mother to father's residence to retrieve the children pursuant to the court's order.

The trial court entered an interim order in March 1999 reinstating limited parenting time for father until a custody evaluation could be conducted and a full hearing held. The court specifically found that the children were subject to "anger and disruption" and that the current wife was a "destructive influence" and an "irritant" who "precipitated problems." The court ordered father to "protect" the children from the current wife's "negative influences" and indicated that father was, in effect, "on probation" until the court held the next hearing. At the November 1999 hearing, the custody evaluator recommended that mother be awarded sole custody and that father have parenting time which limited or eliminated the children's contact with the current wife. After this testimony was taken, father indicated that he did not wish to contest parenting time. Accordingly, the parenting coordinator was not asked to testify as to this issue.

The court granted mother sole custody of the children and granted father parenting time. In the order, the court adopted all the custody evaluator's recommendations except that part stating the current wife should not be left alone with the children. Instead, father was ordered to keep the children at least 100 yards from the current wife at all times. The court stated that the custody evaluator's recommendations were inappropriate in part because "they seem to reflect the eternal optimism of psychotherapists that people will be able to turn themselves around emotionally." The court noted that although it had "had enough" of this case, it still needed to protect the children.

The court recognized that the 100-yard restriction on parenting time "is a tragedy," which would make holidays "extremely difficult," but nonetheless imposed it because "even the slightest exposure of the children to [the current wife] will be . . . very significantly harmful to them emotionally." The court found that father had not been able to control the current wife's behavior and that her "lack of impulse control is . . . emotionally damaging to these girls." Further, the court found that mother had "depleted her emotional resources" to "repair the damage," which made these resources unavailable to the children. The court found this too was "extraordinarily harmful" to the children.

As to child support, the court imputed a gross monthly income of $4,000 to father, after finding he earned only $2,566 per month in his new job as a teacher. Based on the child support guidelines, the court ordered father to pay child support in the amount of $1275.51 per month. Arrearages were calculated at $8800.21, payable monthly over twelve months in the amount of $733.35.

I. Parenting Time

Father contends that the trial court abused its discretion in restricting his parenting time by requiring that his current wife remain at least 100 yards away from the children at all times. We agree.

Section 14-10-123.4, C.R.S.2001 provides: "The [G]eneral [A]ssembly hereby declares that children have certain rights in the determination of matters relating to parental responsibilities, including the right to have such determinations based upon the best interests of the child."

In determining the best interests of the child, the court must consider the factors enumerated in § 14-10-124(1.5), C.R.S.2001, including the interaction between the child and any other person who may significantly affect the child's best interests. See generally In re Marriage of Lester, 791 P.2d 1244 (Colo.App.1990). The court must also consider all other relevant factors. Section 14-10-124(1.5)(a), C.R.S., 2001.

In addition, reasonable parenting time is mandated, and undue restrictions on parenting time are prohibited, unless the court finds that the exercise of parenting time rights would endanger the child's physical health or significantly impair the child's emotional development. Section 14-10-129(1), (2), C.R.S.2001; G.A. v. C.V., 976 P.2d 881 (Colo.App.1999).

A trial court need not make specific findings on each and every factor listed in the statute, but there must be some indication in the record that the trial court considered factors that were pertinent. In re Marriage of Garst, 955 P.2d 1056 (Colo.App. 1998).

In many stepfamilies, the stepparent assumes the role of the psychological parent. See Bryce Levine, Note, Divorce and the Modern Family: Providing in Loco Parentis Stepparents Standing to Sue for Custody of Their Stepchildren in a Dissolution Proceeding, 25 Hofstra L. Rev. 315 (1996). The psychological parent is someone other than a biological parent who develops a parent-child relationship with a child through day-to-day interaction, companionship, and caring for the child. Indeed, once this bond forms, many psychologists believe that breaking up the relationship would be harmful to a child's emotional development. Joseph Goldstein et al., The Best Interests of the Child: The Least Detrimental Alternative 11-13, 104, 105 (1996).

Colorado courts have recognized the concept of psychological parenting and its relationship to the best interests of the child. See In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995)(evidence supported determination that it was in the best interests of the child to stay with the psychological parents); In re V.R.P.F., 939 P.2d 512 (Colo.App.1997)(noting legislative recognition of the importance of "psychological parenting" to the best interests of a child). See also In re Paternity of Cheryl, 434 Mass. 23, 746 N.E.2d 488, 495 n. 15 (2001)(children benefit psychologically, socially, and educationally from stable and predictable parental relationships, including those with a stepparent). In fact, a societal interest exists in the marital family, including families with stepparents. See § 14-10-124; see generally Eric G. Andersen, Children, Parents, and Nonparents: Protected Interests and Legal Standards, 1998 BYU L. Rev. 935 (1998). Accordingly, when family integrity is broken or weakened by state intrusion, a child's needs are often thwarted and his or her development detrimentally impacted. In re G.C., 50 S.W.3d 408, 415 (Mo.Ct.App.2001)(Teitelman, J., concurring).

This concept of the psychological parent is based on the state's interest in marriage and in maintaining the importance of the family. See In re Marriage of Newman, 653 P.2d 728 (Colo.1982)(marriage is favored over less formalized relationships that exist without the benefit of marriage).

In considering the best interests of the child, some courts have concluded that child placement decisions must provide the least detrimental alternative to ensure a child's development. See, e.g., Adoption of Michelle T., 44 Cal.App.3d 699, 117 Cal.Rptr. 856 (1975); In re Aaron Z., 81 Wis.2d 194, 260 N.W.2d 246 (1977). The least detrimental alternative analysis is predicated on the notion that although some detriment to a child is present in every child placement decision, a court's task is to make the placement choice "least detrimental" to the child. Goldstein, supra, at 50-51.

Although no reported Colorado appellate opinion has addressed whether and how a court should consider the least detrimental alternative when determining the best interests of the child, the supreme court has stated that the foremost priority in resolving parenting time disputes is to minimize the detriment to the child. In re Custody of C.C.R.S, supra; see also In re Marriage of Chester, 907 P.2d 726 (Colo.App.1995)(trial court's determination that children were capable of adjusting to an out-of-state move without suffering any serious detriment was within its broad discretion).

In addition, other states that, like Colorado, have adopted the Uniform Dissolution of Marriage Act (UDMA) have recognized the concept of the least detrimental alternative for safeguarding a child's growth and development when applying the "best interests of the child" test. See Evans v. Evans, 116 Ariz. 302, 569 P.2d 244, 247 (Ct.App.1977)(remanding for further proceedings on other grounds but noting that it would be "in the best interest of the child and the least detrimental alternative" to place the child in the father's custody without supervision of the court in a dependency case subject to the continuing jurisdiction of the divorce court); In re Marriage of Manley, 83...