In re S.Z.S.
| Decision Date | 08 September 2022 |
| Docket Number | Court of Appeals No. 21CA1760 |
| Citation | 521 P.3d 1025,2022 COA 105 |
| Parties | IN RE the Parental Responsibilities Concerning S.Z.S., a Child, and Concerning Zofia Elise Tisue, Appellant, and Christopher Michael Smith, Appellee. |
| Court | Colorado Court of Appeals |
Randy L. Brown, P.C., Randy L. Brown, Grand Junction, Colorado, for Appellant
Cordell Law, LLP, Dorothy Walsh Ripka, Billie Jo Sowinski, Greenwood Village, Colorado, for Appellee
Opinion by JUDGE TOW
¶ 1 In this post-decree parental responsibilities case, Zofia Elise Tisue (mother) appeals the district court's order adopting a magistrate's ruling that modified parenting time. She also appeals the magistrate's ruling that modified decision-making responsibility. This appeal requires us to consider an issue not previously addressed by an appellate court in this state: Can a parent be found to have consented to a child's integration into the other parent's family even though the parents only agreed that the child would live with and be cared for by the other parent on a temporary basis?
¶ 2 Because we answer this question in the affirmative, we affirm the order concerning parenting time. In addition, we dismiss as moot the portion of mother's appeal concerning decision-making responsibility. And we remand the case for further proceedings on mother's request for appellate attorney fees and costs.
¶ 3 Mother had one child, S.Z.S., with Christopher Michael Smith (father), and, in 2017, the magistrate entered permanent orders allocating parental responsibilities. The magistrate gave mother primary residential care and sole decision-making responsibility for the child, and father received parenting time during alternating weekends and school breaks.
¶ 4 Approximately six months later, mother relocated to Minnesota with the child, and the parties stipulated to a modified parenting time plan. Under the modified plan, the child lived with mother during the school year, and father had parenting time during the child's school breaks. The magistrate approved this modified plan.
¶ 5 The following summer, mother's partner experienced health problems, and mother indicated that she was struggling to provide care for the child and her partner. The parties agreed that the child, who was then six years old, would live primarily with father and attend first grade in Colorado. Mother exercised limited parenting time with the child during this time.
¶ 6 In the summer of 2019, the parties agreed that the child would remain with father and complete second grade in Colorado. They executed a written stipulation memorializing this agreement and asserted that, in the fall of 2020, the child would return to school in Minnesota with mother. The magistrate approved the parties’ stipulation.
¶ 7 In August 2020, father sought to have the child remain with him in Colorado. But the magistrate ordered the parties to resume their previous parenting time plan, and the child returned to Minnesota. Shortly after the magistrate's ruling, father filed a motion to modify parenting time, requesting primary residential care of the child. He argued that, over those two years, the child had been integrated into his family with mother's consent and that it was in the child's best interests to reside primarily with him during the school year.
¶ 8 After a three-day hearing, the magistrate granted father's motion to modify parenting time. The magistrate had concerns with mother's instability and the risks this posed to the eight-year-old child. He then found that father could better provide for the child's long-term needs and that it was in the child's bests interests to allocate to him primary residential care of the child. The magistrate allocated to mother parenting time generally over the child's school breaks. The magistrate also modified decision-making responsibility, directing the parties to jointly make all major decisions for the child.
¶ 9 Mother petitioned the district court to review the magistrate's order. The district court adopted the portion of the order modifying parenting time. It concluded that the magistrate applied the correct legal standard and that the record supported the child's integration into father's family with mother's consent.
¶ 10 In a later order, the district court determined that the magistrate's ruling concerning decision-making responsibility had to be modified. It explained that, in the permanent orders, the magistrate had made a finding of domestic violence but had then failed to consider this finding when modifying decision-making responsibility. The court set an evidentiary hearing to resolve the issue, but before the hearing, the parties stipulated to joint decision-making responsibility. The district court adopted their stipulation.
¶ 11 Our review of a district court's order adopting a magistrate's ruling is, in effect, a second layer of appellate review. In re Marriage of Evans , 2021 COA 141, ¶ 39, 504 P.3d 988. We review de novo whether the court applied the correct legal standard. In re Parental Responsibilities Concerning E.S. , 264 P.3d 623, 626 (Colo. App. 2011). We also review de novo the court's conclusions of law, but we accept the magistrate's factual findings unless they are clearly erroneous. In re Parental Responsibilities Concerning B.J. , 242 P.3d 1128, 1132 (Colo. 2010). A court's factual finding is clearly erroneous when it has no record support. Evans , ¶ 39.
¶ 12 Mother contends that the magistrate erred by modifying parenting time because he did not apply the legal standard for consensual integration when issuing his ruling and the record did not establish that the child had been integrated into father's family with mother's consent. We disagree.
¶ 13 A court has broad discretion to modify existing parenting orders, and we must exercise every presumption in favor of upholding its decision. See In re Marriage of Barker , 251 P.3d 591, 592 (Colo. App. 2010) ; see also In re Marriage of Hatton , 160 P.3d 326, 330 (Colo. App. 2007).
¶ 14 The child's best interest is the controlling factor for a court when determining parenting time. See § 14-10-129(1)(a)(I), (2), C.R.S. 2021; Barker , 251 P.3d at 592 ; see also § 14-10-124(1.5)(a), C.R.S. 2021 (best interests factors). When a parent seeks a substantial modification of parenting time that also changes the parent with whom the child primarily resides, the court must retain the prior parenting time order unless there has been a change in circumstances and, as relevant here, the child has been integrated into the family of the parent seeking modification with the consent of the other parent. § 14-10-129(2)(b).
¶ 15 The child's integration with parental consent is a factual determination based on the totality of the circumstances. See In re Marriage of Chatten , 967 P.2d 206, 208 (Colo. App. 1998) ; In re Marriage of Pontius , 761 P.2d 247, 249 (Colo. App. 1988). The court considers the frequency, duration, and quality of the child's contacts with each parent; which parent is making decisions concerning the child's health care, education, religious training, and general welfare; and the child's views as to which environment constitutes his or her home. Chatten , 967 P.2d at 208 ; Pontius , 761 P.2d at 249-50.
¶ 16 Integration, therefore, is more than a parent's expanded visitation with the child. Chatten , 967 P.2d at 208 ; Pontius , 761 P.2d at 249. It includes the parent performing normal parental duties and guiding the child physically, mentally, morally, socially, and emotionally. Chatten , 967 P.2d at 208 ; accord Pontius , 761 P.2d at 249. As well, the time spent by the child with the parent seeking primary residential care "must be of sufficient duration that the child has become settled into the home of that parent as though it were his or her primary home." Chatten , 967 P.2d at 208.
¶ 17 The requirement of the other parent's consent is satisfied when that parent voluntarily places the child with the noncustodial parent and willingly permits the child to become integrated into the new family. Id. The parent's consent does not need to be explicit. See id. Rather, it "may be implied from a voluntary transfer of custody that results in the child's integration into" the other parent's family. Id.
¶ 18 Mother argues that because the magistrate made no specific finding that the child had integrated into father's family with mother's consent, the magistrate failed to apply the correct legal standard. We are not persuaded.
¶ 19 In his ruling, the magistrate expressly set forth the applicable law for modifying parenting time. Specifically, the magistrate recognized that a change to the prior parenting time order must serve the child's best interests and stated that the magistrate "must retain the prior schedule unless [he] finds that [the] child has been integrated into the family of the moving party with consent of the other party." The magistrate then analyzed and made findings on the best interests factors enumerated in section 14-10-124(1.5)(a).
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