SUMMARY

January 14, 2021

2021COA3

No. 19CA2084, Marriage of Crouch — Family Law — Postdissolution — Modification of Custody or Decision-making 

Responsibility

A division of the court of appeals addresses the appropriate 

burden of proof to apply when considering a request to modify the 

allocation of decision-making responsibility between parents for 

vaccinating their children when one parent has a religious-based 

objection to vaccination. The division concludes that when applying 

the endangerment standard under section 14-10-131(2)(c), C.R.S. 

2020, it is error for a court to impose an additional burden on the 

moving parent to show substantial harm to the children.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2021COA3

Court of Appeals No. 19CA2084

La Plata County District Court No. 17DR30001

Honorable Suzanne F. Carlson, Judge

In re the Marriage of

Rebecca Greene Crouch, 

Appellee,

and

William Blake Crouch,

Appellant.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division V

Opinion by JUDGE PAWAR

J. Jones and Berger, JJ., concur

Announced January 14, 2021

The Law Firm of Lisa Ward, LLC, Lisa Ward, Donald Lawrence, Jr., Durango, 

Colorado, for Appellee

Willoughby & Associates, Kim Willoughby, Kaela Zihlman, Golden, Colorado, 

for Appellant
1

¶ 1 In Colorado, parents can elect not to vaccinate their children. 

But what happens when parents divorce and one parent later has a 

change of heart about vaccinating the children, while the other 

maintains a religious-based objection to vaccination? In this

post-dissolution of marriage dispute, we address the appropriate 

burden of proof for the district court to apply when considering the 

request of William Blake Crouch (father) to modify joint medical 

decision-making responsibility to allow him to vaccinate the

children, over the objection of Rebecca Greene Crouch (mother).

¶ 2 Following a hearing on father’s motion to modify medical 

decision-making responsibility, the district court found that 

remaining unvaccinated “endangers the health of the children.”

But, because mother objected to vaccinating the children based, in 

part, on her religious beliefs, the court imposed an additional 

burden on father “to prove substantial harm to the children” in 

order to overcome “[m]other’s right to exercise religion freely.” The 

court found that father failed to meet the additional burden and 

denied his request to modify medical decision-making 

responsibility.
2

¶ 3 Father appeals the district court’s order. We reverse the order

and remand the case for further proceedings. 

I. Background

¶ 4 Mother and father divorced in 2017, and their parenting plan 

was approved by the court and incorporated into the decree. In 

relevant part, the plan provides for joint medical decision-making 

authority and that “[a]bsent joint mutual agreement or court order, 

the children will not be vaccinated.”

¶ 5 In 2018, however, father had a change of heart about the 

children remaining unvaccinated. Father said that his position 

evolved after the parties’ divorce when he researched the issue and 

concluded that the children should be vaccinated. He described a 

“wake-up moment” he had when traveling for business to Seattle 

while the city was experiencing a measles outbreak, and then being 

afraid to be around the children after he got home out of fear of 

unknowingly exposing them. He said that he travels often for work, 

including to international destinations, and that he wanted to travel 

to other countries with the children and believed their world would 

be increasingly too small without such opportunities. He further 
3

expressed concern about the children contracting 

vaccine-preventable diseases and exposing others. 

¶ 6 For her part, mother opposed vaccinating the children, in part,

because it conflicted with her religious beliefs. Father, however,

asserted that he did not hold the same religious beliefs as mother 

and that the children did not adhere to restrictions dictated by 

mother’s religion during his parenting time. In addition to her 

religious-based objection, mother also argued that vaccines pose a 

risk of side effects for the children. Specifically, because mother

has an autoimmune disease and the children all had midline 

defects at birth, she asserted that vaccinations for the children are

contraindicated. 

¶ 7 Because they were at an impasse, the parties stipulated to the 

appointment of a parenting coordinator/decision-maker (PCDM) to 

decide the issue. After noting the parties’ respective positions, the 

PCDM declined to render a decision, stating that the issue was

outside of her expertise and likened rendering a decision on it to 

“practicing medicine without a license.”

¶ 8 Having received no decision from the PCDM, father filed an 

expedited motion with the district court seeking an order allowing 
4

him to have the children vaccinated in accordance with the Centers 

for Disease Control and Prevention guidelines and awarding him 

sole medical decision-making responsibility. Mother responded, 

objecting to vaccinations for the children and to father’s request for 

sole medical decision-making responsibility, and the district court 

set a hearing on the matter.

¶ 9 Each party testified at the hearing. Additionally, father 

presented expert testimony from a physician, who was qualified as 

an expert in pediatrics and vaccinations. Mother did not present 

any expert testimony or any witnesses other than herself. 

¶ 10 After the hearing, the court credited father’s expert’s 

testimony, rejected mother’s medical-based objections, and found 

that the “failure to vaccinate endangers the health of the children.”

Recognizing that mother had also asserted a religious-based 

objection, however, the court went on to find that vaccination would 

interfere with mother’s “right to exercise religion freely,” and 

therefore imposed an “additional burden” on father “to prove 

substantial harm to the children” if they remained unvaccinated. 

The court ruled that father had not met this additional burden and 

denied his motion to modify. The court went on to find, however,
5

that if any of the children are wounded, thereby requiring a tetanus 

shot; if a disease outbreak occurs in the community preventable by 

vaccination; or if the children are to travel by air or internationally, 

such circumstances would constitute “substantial harm warranting 

a forthwith modification of decision-making.” And because the 

court found that “air travel and international travel do create 

substantial harm,” it prohibited the children from air travel or 

international travel unless they are vaccinated.

¶ 11 Father moved to reconsider the court’s order under C.R.C.P. 

59. In denying his motion, the court clarified that it was not ruling 

that the children could not be vaccinated, but only that father had 

not met his burden to modify decision-making responsibility so that 

he could make that decision.

¶ 12 Father appeals, contending that the court erred by (1)

enforcing what he describes as an unenforceable “agreement to 

agree” in the parties’ parenting plan; (2) making inconsistent 

findings under the endangerment standard; (3) failing to apply a 

strict scrutiny analysis to mother’s religious rights objection; and 

(4) failing to consider and weigh his fundamental rights as well as 

mother’s rights. We conclude that the court erred by misapplying 
6

the endangerment standard in section 14-10-131(2)(c), C.R.S. 2020. 

Consequently, we reverse the court’s order and remand the case for 

further proceedings.

II. Father’s Claim that the Parenting Plan’s Vaccination Provision Is 

an Unenforceable “Agreement to Agree” Was Not Preserved

¶ 13 Father initially claims that the parties’ parenting plan 

provision stating that the children would not be vaccinated unless 

the parties agree is unenforceable as an “agreement to agree.” 

Because father failed to argue this issue in the district court,

however, he cannot argue it for the first time on appeal. See In re 

Marriage of Ensminger, 209 P.3d 1163, 1167 (Colo. App. 2008); see

also Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182, 

1188 n.4 (Colo. App. 2011) (“A party’s mere opposition to its 

adversary’s request . . . does not preserve all potential avenues for 

relief on appeal. We review only the specific arguments a party

pursued before the district court.”). 

¶ 14 Father cites to his post-trial motion — in which he asserted

that the court must decide the vaccination issue because the 

parties disagree on it — as sufficient to preserve the argument he 

now presents. We disagree. Father did not, at any point during the 
7

proceedings or in his post-trial motion, argue that the vaccination 

provision was an unenforceable agreement to agree. Rather, he 

asked the district court to modify the vaccination provision and 

medical decision-making responsibility so that he can have the 

children vaccinated, and that is the issue on which the court ruled. 

Accordingly, the enforceability of the agreement’s vaccine provision 

has not been preserved, and we do not address it. See Melat, 

Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61, 

¶ 18; Valentine, 252 P.3d at 1188 n.4.

III. Which Legal Standard Applies: Endangerment, Substantial 

Harm, or Strict Scrutiny?

¶ 15 Father’s remaining contentions challenge various burdens of 

proof that he contends the court either improperly applied or 

improperly overlooked. First, father argues that the court made 

inconsistent findings under the endangerment standard by finding 

that “failing to vaccinate the children endangers their health,” but 

also finding that father did not meet his “burden of showing 

substantial harm to the children.” Next, he argues that because 

mother raised a religious objection to vaccination, the trial court 

should have applied a strict scrutiny analysis and found a 
8

compelling state interest to overcome her objection. Finally, father 

argues that because he has a constitutional right to travel and to 

parent his children, the court erred by failing to recognize and 

weigh the parents’ competing constitutional interests. 

¶ 16 We address father’s remaining issues collectively to determine 

the correct legal standard to apply, and, in doing so, we conclude 

that by subjecting father to the “additional burden” to prove 

substantial harm, the court misapplied the endangerment standard

in section 14-10-131(2)(c).

A. Preservation

¶ 17 Initially, we reject mother’s argument that we may not review 

father’s contention as it applies to the court’s findings of 

endangerment and substantial harm because father did not raise it 

in the district court until his post-trial motion. “[A] party is not 

required to object to the trial court’s findings in the trial court to 

preserve a challenge to those findings.” People in Interest of D.B., 

2017 COA 139, ¶ 30; see C.R.C.P. 52. Thus, we may review father’s 

challenge to the court’s endangerment and substantial harm 

findings in relation to the application of the proper legal standard.
9

B. Additional Background

¶ 18 Based on father’s expert’s testimony, the court made the 

following factual findings in applying section 14-10-131(2)(c): 

• “Because of the way diseases are transmitted and 

because Durango [where the children live] is a tourist 

destination, the Court finds failure to vaccinate 

endangers the health of the children even though they 

are home schooled.” 

• Vaccination provides benefits to the children, including 

“preventing severe illness, permanent severe damage, and 

death.”

• The risks of vaccination are “extremely low.”

¶ 19 Neither party has challenged the court’s factual findings, and 

because they are supported by the record, they are binding on us 

on appeal. See In re Marriage of Newell, 192 P.3d 529, 534-

35 (Colo. App. 2008) (declining to disturb endangerment findings 

that were supported by the record). Father’s physician expert 

witness disagreed with mother’s position on the medical risks of 

vaccination. He further testified that although the parties’ oldest 

child had a low percentage risk of contracting a vaccine-preventable 
10

disease (because most people in the community have been 

vaccinated), he had a high percentage risk of contracting such 

diseases if he were exposed to an infected person, and the 

repercussions for him could be severe. 

¶ 20 The court expressly found that the children’s physical health 

was endangered, see § 14-10-131(2)(c). It is unclear, however, 

whether it considered the second prong of section 14-10-131(2)(c), 

that is, whether the harm likely to be caused by the change in 

decision-making is outweighed by the advantage to the child. 

Instead, the court expanded its analysis and determined that 

because vaccinating the children would interfere with mother’s right 

to freely exercise her religion, father must meet an additional 

burden of showing that the failure to vaccinate caused the children 

substantial harm. It concluded that father did not meet that

burden and therefore denied his motion to modify.

C. Legal Standards

¶ 21 Allocating parental responsibilities is a matter within the 

sound discretion of the district court. In re Parental Resps. of 

B.R.D., 2012 COA 63, ¶ 15. However, we review de novo whether 

the district court applied the correct legal standard. Id.
11

¶ 22 A court shall not modify a decree allocating decision-making 

responsibility unless it finds, based on facts that have arisen since 

the decree, that a change has occurred in the circumstances of the 

child or of a party to whom decision-making responsibility was 

allocated and that modification is necessary to serve the child’s best 

interests. § 14-10-131(2). In applying these standards, the court 

shall retain the decision-making responsibility allocation from the 

prior decree unless, as relevant here, doing so “would endanger the 

child’s physical health” and the harm likely to be caused by a 

change in decision-making responsibility is outweighed by the 

advantage to the child. § 14-10-131(2)(c); see B.R.D., ¶¶ 17-18.

D. Endangerment, Strict Scrutiny, and Substantial Harm

Under McSoud

¶ 23 The district court relied on In re Marriage of McSoud, 131 P.3d 

1208 (Colo. App. 2006), to impose the additional burden on father

to show substantial harm after it found endangerment under 

section 14-10-131(2)(c). In doing so, the court erroneously applied

the burden that applies when the government — here, the court —

interferes with a parent’s constitutional right, instead of the burden 

applicable when allocating sole decision-making to one parent over 
12

the other. To be sure, father claims, on the one hand, that the 

court erred by making inconsistent findings regarding

endangerment and substantial harm and, on the other hand, that 

the court erred by failing to apply a strict scrutiny analysis when 

considering mother’s religious-based objection. To resolve both 

claims, we briefly review the circumstances in McSoud that 

warranted a strict scrutiny analysis and conclude that analysis is 

inapplicable here.

¶ 24 The court in McSoud restricted the child’s mother from taking 

the child to a church of her religious choosing during her parenting 

time unless she also supported the child’s participation in father’s 

church. 131 P.3d at 1214, 1219-20. A division of this court held 

that by preventing mother from taking the child to her church 

during her parenting time, the court unconstitutionally restricted 

mother’s religious rights. And, to the extent the order also required 

the mother to accompany the child to the father’s church services 

during her parenting time, it further restricted her religious rights. 

Id. at 1219. Because the court was imposing the restrictions, such 

orders required strict scrutiny. That is, before the court could

infringe on the mother’s religious rights, it must show a compelling 
13

state interest — for example, substantial harm to the child from the 

mother’s actions in exposing the child to her religion and church. 

Id. at 1220. 

¶ 25 But the McSoud division applied strict scrutiny to require a 

showing of a compelling state interest, namely, substantial harm,

only as to the portion of the court’s order where the court, as the

state actor, infringed on the mother’s religious rights. See id. at 

1219-20; see also id. at 1216 (“Governmental interference with the 

constitutional rights of a fit, legal parent is subject to strict

scrutiny.”).

¶ 26 Conversely, here, the court clearly recognized that it was not 

mandating either vaccination or no vaccination for the children; 

rather, it was ruling on father’s motion to modify vaccination and

medical decision-making responsibility, in which father sought to 

make that decision for the children. 

¶ 27 A parent’s free exercise rights are not implicated by a court’s 

allocation of decision-making responsibility between parents. 

Indeed, McSoud expressly rejects the need for strict scrutiny, and 

therefore the need to show substantial harm, when allocating

decision-making responsibility between the child’s parents because, 
14

in that context, the court is merely expanding one parent’s 

fundamental right at the expense of the other parent’s similar right. 

Id. at 1218-19. In short, the McSoud division upheld the lower 

court’s allocation of religious decision-making responsibility 

between the child’s two parents without requiring a showing of

substantial harm to withstand strict scrutiny. See id.; cf.

Vanderborgh v. Krauth, 2016 COA 27, ¶¶ 20-21 (noting that a

father’s fundamental rights to parent were not implicated in a 

parenting time dispute between him and the child’s mother).

¶ 28 Accordingly, here, the court erred by imposing a heightened 

burden on father to show substantial harm — a burden only 

relevant to show a compelling state interest under a strict scrutiny 

analysis — when considering his request to modify the allocation of 

decision-making responsibility between him and mother. Instead, 

once the court found, with record support, that father met his 

burden to show that the failure to vaccinate endangers the

children’s physical health, and that the risks of vaccination are

“extremely low” as compared to its benefits of “preventing severe 

illness, permanent severe damage, and death,” it should have 

proceeded to the second prong of the inquiry, namely, whether the 
15

harm likely to be caused by changing decision-making 

responsibility outweighed the benefit to the child. See § 14-10-

131(2)(c).

¶ 29 Based on the above reasoning, we also reject father’s claim

that the court should have applied a strict scrutiny analysis to 

mother’s asserted religious objection and erred by failing to do so. 

As discussed, a strict scrutiny analysis is not required when 

allocating decision-making responsibility between parents. So, the 

court was not required, as father contends, to find that mother’s 

religious-based objection established a compelling state interest 

sufficient to withstand strict scrutiny. See McSoud, 131 P.3d at 

1218-19 (holding that a compelling state interest need not be found 

in order to allocate religious decision-making responsibility to only 

one parent).

E. Parents’ Competing Constitutional Interests Under Ciesluk

¶ 30 Father last contends that the district court erred by not

recognizing his constitutional rights to parent and to travel, and by 

failing to weigh his and mother’s competing rights in accordance 

with In re Marriage of Ciesluk, 113 P.3d 135, 147-48 (Colo. 2005). 

Though we reverse the court’s order on other grounds, because it 
16

may arise on remand, we briefly address father’s contention and 

specifically how the Ciesluk balancing of interests test applies in the 

context of an endangerment finding under section 14-10-131(2)(c). 

¶ 31 In Ciesluk, the supreme court determined that the trial court 

erred by failing to weigh the parents’ competing constitutional 

rights when it reviewed a modification of parenting time under a 

best interests standard — specifically, the relocation standard 

under section 14-10-129(2)(c). But here, the court was tasked with 

considering a modification to decision-making responsibility under 

an endangerment standard. And a division of this court has 

observed that “while endangerment will necessarily encompass best 

interests, few best interests arguments will show endangerment.” 

In re Marriage of West, 94 P.3d 1248, 1251 (Colo. App. 2004). 

Additionally, the Colorado legislature has recognized that children 

have the right to be physically safe while in their parents’ care. § 

14-10-123.4(1)(b), C.R.S. 2020. 

¶ 32 Section 14-10-131(2) directs that a court “shall not modify” 

decision-making responsibility unless circumstances have changed 

such that a “modification is necessary to serve the best interests of 

the child”; included among the list of circumstances that authorize 
17

modification is when the court finds endangerment, as the court did 

here. We do not interpret the statute to mean that parents’ 

constitutional interests are never appropriate considerations when 

considering a request to modify decision-making responsibility

alleging endangerment. Rather, to the extent parents’ 

constitutional rights are relevant to the endangerment inquiry, they 

should be considered and weighed — without heightened scrutiny 

or deference. In other words, the parents’ constitutional rights 

should be considered like any other factor that informs whether the 

harm likely to be caused by a reallocation of decision-making 

responsibility is outweighed by the advantage of the change. See § 

14-10-131(2)(c). 

¶ 33 Finally, based on the disposition reached in this opinion, we 

need not address father’s challenge to the court’s restriction 

preventing the children from traveling by plane or outside of the 

United States with him.

IV. Conclusion and Remand Instructions

¶ 34 The order is reversed, and the case is remanded for the court 

to reconsider father’s motion to modify medical decision-making

responsibility under section 14-10-131(2)(c) by applying the 
18

endangerment standard consistent with this opinion. The court 

may rely on the evidence presented at the prior hearing or, in its 

discretion, provide the parties an opportunity to present any new 

evidence concerning their or the children’s changed circumstances.

¶ 35 The proceedings on remand shall occur forthwith. See § 14-

10-128(1), C.R.S. 2020.

JUDGE J. JONES and JUDGE BERGER concur.