Chapter 23 - § 23.4 • CHILD SUPPORT

• Jurisdiction: Colorado

§ 23.4 • CHILD SUPPORT

Child support can be modified (1) upon a showing of "substantial and continuing change" of circumstances, C.R.S. § 14-10-122(1)(a); (2) upon a showing that the underlying order does not contain a provision regarding medical support, id.; or (3) when a mutually agreed-upon change of physical care occurs. C.R.S. § 14-10-122(5). C.R.S. § 14-10-122 provides that a change in circumstances that results in a less than 10 percent change in the amount of child support due from the previous child support order is not a substantial and continuing change of circumstances. C.R.S. § 14-10-122(1)(b). If the modification results in a greater than 10 percent change in support, a rebuttable presumption is created that the modification should be granted. In re Marriage of Lishnevsky, 981 P.2d 609 (Colo. App. 1988). Regardless of this statutory provision, the Colorado courts have found that in certain situations, other relevant factors can be used to show a substantial and continuing change of circumstance warranting a change in child support, even when the change under the guidelines is less than 10 percent. In re Marriage of Ford, 851 P.2d 295 (Colo. App. 1995).

A modification of child support should be effective as of the date the motion to modify was filed, C.R.S. § 14-10-122(1)(d), or in cases where there has been a mutually agreed upon change of physical care, as of the date the physical care was changed, C.R.S. § 14-10-122(5). However, the court does retain the discretion to determine that the order shall not be retroactive if such an order would cause undue hardship or substantial injustice. C.R.S. § 14-10-122(1)(d). As with maintenance, the court also has the discretion to modify installments of child support due between the filing of the motion and the entry of the order, even if the circumstances justifying the modification no longer exist at the time the order is entered. Id.

The burden of proof in showing that a modification in child support is appropriate lies with the party who seeks to modify child support. In re Marriage of Corbin, 591 P.2d 1046 (Colo. App. 1979); In re Marriage of Lodholm, 536 P.2d 842 (Colo. App. 1975).

In cases where the original child support order was issued in Colorado and one of the affected parties remains in Colorado, the district court continues to have jurisdiction to consider child support modification...