The Colorado Supreme Court attempted to identify on Wednesday the circumstances under which judges may reduce the number of days a parent spends with their child post-divorce without it rising to the level of a “restriction” that requires more rigorous justification under the law.

During oral arguments, some members expressed discomfort with a recent Court of Appeals opinion holding that a reduction in the number of days, even an extreme one, is not a “restriction of parenting time rights.”

“My struggle with the Court of Appeals,” said Justice Richard L. Gabriel, “is it basically said, ‘Never. You never look at quantitative (reductions) at all, period.’ I have a problem with that. How is it not a restriction if you reduce a father’s parenting time from 140 days to one? That has to be a restriction, doesn’t it?”

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 in El Paso County. Originally, pursuant to the termination of his marriage, Dale was permitted 160 overnight visits per year. However, following changes to his work schedule, he sought to reschedule the visitations to accommodate his employment.

District Court Judge William Moller initially stated he would permit Dale 142 overnight visits under a revised schedule, but his order ultimately afforded Dale approximately 115 overnights instead. Dale then appealed, arguing that Moller had restricted his parenting time and, under Colorado law, such restrictions require judges to first find that 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.'” 

A three-judge Court of Appeals panel acknowledged neither parent in Dale’s case had requested a “reduction of this magnitude.” However, Judge Ted C. Tow III 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 days alone.

Because Moller did not impose qualitative conditions on how Dale exercised his parenting time and instead just reduced the quantity 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.

Dale appealed to the Supreme Court, proposing several factors that judges should consider when “no actual or practical circumstances” support the status quo regarding parenting time.

“Can you reduce the time by one day and not get into the ‘restriction’ camp?” asked Justice Carlos A. Samour Jr.

“It really depends on the reason why the restriction of one day is necessary,” responded attorney Henry L. Solano.

At least three of the justices suggested they were interested in a framework contained in a 2004 Court of Appeals opinion, In the Marriage of West. Relying on decisions from other states, the court determined judges should examine “both the quantitative and the qualitative aspects of the proposed change to parenting time, as well as the reason or reasons advanced for the change.”

Neither Dale nor his ex-spouse, however, was completely sold on that proposal.

“Although a very bright line, Judge Tow’s opinion is the better version compared to West,” said attorney Alexander Masterson, representing Nicole Jehlicka Dale. A framework that looks at all of the circumstances “is going to continually invite the question of, ‘How much is enough?'”

“Can you imagine a scenario in which the trial court eliminates parenting time altogether,” without finding the child is endangered, asked Justice William W. Hood III.

“It’s very difficult to even fathom a scenario” where that happens, replied Masterson.

“It’s an extreme example to test whether the rule you’re suggesting is principled, right? That’s what I’m struggling with,” said Hood. “How do you just ignore quantitative altogether?”

Responding to Masterson’s suggestion that judges look at whether a change stems from logistical concerns or concerns about a parent’s behavior, Justice Maria E. Berkenkotter did not see that as workable, either.

“I’m just concerned that it’s a bright line that makes sense here, but I’m not sure it’s a bright line that makes sense in the real world,” she said, adding that the vast majority of family law cases involve at least one self-represented litigant. “Trial court judges all the time receive motions that are handwritten, that go on for multiple pages about all sorts of things — some of which may be logistical, some of which might be behavioral.”

And yet, the justices also struggled with the framework Solano was suggesting.

“Mr. Solano, respectfully, what I hear you suggesting is sort of a my-client-wins rule,” said Hood. The upshot is that “even very routine modification cases that we see at the trial court level all the time, there would have to be an endangerment evaluation. And that just doesn’t seem workable to me.”

The case is In the Marriage of Dale.