The Role of Constitutional Rights in Parental Decision-Making Disputes, 1121 COBJ, Vol. 50, No. 10 Pg. 18

PositionVol. 50, 10 [Page 18]

50 Colo.Law. 18

The Role of Constitutional Rights in Parental Decision-Making Disputes

No. Vol. 50, No. 10 [Page 18]

Colorado Lawyer

November, 2021



This article discusses In re Marriage of Crouch, which incorporated the constitutional rights of parents into the statutory framework for modifying parental authority for decision-making.

As of May 2021, Colorado was one of 12 states to permit medical, religious, and personal exemptions for vaccine requirements for all vaccines and all school-aged children.[1] During the 2019-20 school year, at least 33,867 Colorado children were exempted from at least one of the otherwise required vaccines.2 Currently, COVID-19 vaccines are being tested and approved for use in children under the age of 12, yet part of the population in Colorado remains COVID vaccine-hesitant.3

Given this background, it is likely that conflicts between parents with shared medical decision-making authority may soon arise with greater frequency. Under the recent Colorado Court of Appeals decision In re Marriage of Crouch, when parents disagree on whether (or on what schedule) to vaccinate a child, courts must balance the child's best interests and the parents' constitutional rights, particularly when a parent objects to vaccination on religious grounds. Further, Crouch's, analysis of constitutional rights implicates modifications of parental decision-making generally.

This article explores how Crouch incorporated the constitutional rights of parents into the statutory framework for modifying decision-making and offers practitioners suggestions for handling future disputes between joint decision-makers.

Statutory Framework for Modifying Decision-Making

CRS § 14-10-131 governs the modification of parental decision-making authority. Under CRS § 14-10-131(2), a court "shall not modify a custody decree... allocating decision-making responsibility unless it finds, [based upon] facts that have arisen since the prior decree... that a change has occurred in the circumstances of the child or the child's custodian ... and that the modification is necessary to serve the best interests of the child."

In making its decision, the court is required to maintain the prior allocation of decision-making authority except in the enumerated circumstances set forth in CRS § 14-10-131(2) (a) to (c). Most of these circumstances—for example, modifications of decision-making based upon agreement, a change in parenting time, or where one parent repeatedly consents to the sole decisions of the other[4] —are rarely litigated and are not particularly useful when parents are unable to agree on a decision that must be made jointly.

In general, the standard for modification articulated in CRS § 14-10-131(2)(c) is most commonly used for modifying decision-making where joint decision-makers cannot agree on one ormore issues. To modify decision-making under this subsection, the moving party must demonstrate that the current allocation of decision-making "would endanger the child's physical health or significantly impairs the child's emotional development" (prong 1) and that the harm likely to be caused by the modification "is outweighed by the advantage of the change to a child" (prong 2).5

The Crouch Construction

Announced in January 2021, Crouch is Colorado's first published Court of Appeals decision regarding a modification of decision-making triggered by vaccine-related disputes.6 In Crouch, the parents entered into a parenting plan providing for shared medical decision-making authority, including a provision stating that "[a]bsent joint mutual agreement or court order, the children will not be vaccinated."7 Approximately one year after the parties' divorce, father changed his stance and wanted the children to be vaccinated.8 Mother opposed vaccination on religious grounds and due to concerns related to vaccine side effects.9 Father moved to modify decision-making pursuant to CRS§ 14-10-131(2)(c), requesting sole medical decision-making authority.10

Following a hearing, the trial court found that failure to vaccinate endangered the children's physical health,[11] but it also stated that because vaccination would "interfere with mother's 'right to exercise religion freely,'" father had an additional burden to "prove substantial harm to the children" if they were not vaccinated.12 Because father had not met this additional burden, the trial court denied father's motion to modify.13

On appeal, neither party challenged the trial court's factual findings related to endangerment14 Rather, the Court of Appeals considered only (1) the legal standard applicable to father's motion, and (2) how to balance the parents' constitutional concerns and the children's best interests within the CRS § 14-10-131(2)(c) framework.15

The Court first analyzed whether the trial court was required to apply a heightened legal standard in determining whether to modify decision-making, given mother's religious objection to vaccination. The Court held that an allocation...

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