Colorado’s second-highest court ruled for the first time on Thursday that even if a judge substantially reduces the amount of time a parent may spend with their child, it is not a “restriction” that requires a heightened justification.

A three-judge panel for the Court of Appeals acknowledged that under its interpretation of the law, a judge could theoretically slash a parent’s time with their child to a single overnight visit a year without having to find the child’s health or development is endangered.

“In any event, if the General Assembly wishes to establish some threshold of purely quantitative change that would require more than merely being in the child’s best interests, it is of course free to do so,” wrote Judge Ted C. Tow III in the March 13 opinion.

Nicholas Dale, who is also the elected district attorney for Las Animas and Huerfano counties, appealed a 2024 order that addressed his request for a modified parenting time schedule with his son. Originally, with the termination of his marriage, Dale was allowed 160 overnight visits a year. However, with changes in his work schedule, he sought to shift the visitation schedule to accommodate his job.

El Paso County District Court Judge William H. Moller originally said he would allow Dale 142 overnight visits under a revised schedule, but his order ended up affording Dale only 115 overnights. Dale then appealed, arguing Moller had restricted his parenting time and, under Colorado law, restrictions require judges to first find the child is endangered.

“The statute neither defines ‘restrict’ nor offers a test to distinguish an order that restricts parenting time from an order that merely modifies a prior order granting parenting time,” wrote Dale, representing himself. But going from “approximately 160 overnights to 115 overnights (a 28.1% reduction in parenting time – roughly 45 overnights per year) amounts to a ‘restriction.'” 

The appellate panel acknowledged neither parent in Dale’s case had requested a “reduction of this magnitude.” However, Tow wrote that restrictions in parenting time address how parents interact with their child — for example, limits on location or supervision — and not the number of visitation days alone.

“There is an important reason to limit the application of the endangerment standard to orders seeking to control or limit the manner, location, or environment in which a parent exercises parenting time as opposed to simply the allocation of parenting time between parents,” wrote Tow, explaining that judges need flexibility to balance multiple factors when devising a schedule that works for the parties.

Because Moller did not impose conditions on how Dale exercised his parenting time and instead just reduced the number of overnight visits, “the endangerment standard was inapplicable. Instead, the court was required to consider the best interests of the child, which it did,” Tow concluded.

The case is In the Marriage of Dale.