”Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”

– Learned Hand.

What will the Court Consider When Deciding Parenting Time and Decision-Making for Your Child?

By Jennifer McDonald, January 2014

If you have children, and you are thinking about getting a divorce, or if you are looking to establish a custody proceeding in Colorado, you should know what the court will look at when it is deciding who your children will spend time with, and who will make major decisions for them. The legislature in Colorado has decided that “it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. In order to effectuate this goal, the general assembly urges parents to share the rights and responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents.”[1]

In Colorado, courts today have changed the way they talk about divorce. The legal term for Divorce is now “dissolution of marriage,” and child custody is called “allocation of parental responsibilities.” Parental responsibilities are divided into the physical care of the children, or who they will spend time with, and parental decision-making, or which parent or parents will be allowed to make major decisions like health care, education, religion, and after school activities. In considering both parenting time and decision making the court looks at “the best interests of the child giving paramount consideration to the physical, mental, and emotional conditions and needs of the child….”[2]

A court is allowed to make provisions for parenting time upon the motion of either party, or on the court’s own motion. The court determines the parenting time based on what it finds to be in the child’s best interests. If there is a hearing, and the court finds that parenting time with a party would endanger the child’s physical health or significantly impair the child’s emotional development, the court will not make provisions for parenting time with that parent. However, if there is no danger to the child, the court will consider a list of factors in determining how much parenting time each parent will have. The relevant factors include:

  1. The wishes of the child’s parents as to parenting time;
  2. The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
  3. The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
  4. The child’s adjustment to his or her home, school, and community;
  5. The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
  6. The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
  7. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
  8. The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
  9. Whether one of the parties has been a perpetrator of child abuse or neglect…[in Colorado], or under the law of any state, which factor shall be supported by credible evidence;
  10. Whether one of the parties has been a perpetrator of domestic violence, which factor shall be supported by a preponderance of the evidence;
  11. The ability of each party to place the needs of the child ahead of his or her own needs.[3]

The court will look at decision-making responsibilities for the child or children separately from parenting time. Decision-making is something that the court reviews based on a motion by either party, or on the court’s own motion. The court will allocate, or assign, decision making responsibilities for each major issue affecting the child either mutually between the parties, or individually to one party or the other, or a combination thereof, based on the best interest of the child. This means that one parent could be in charge of educational decisions and the other could be in charge of medical decisions. Or, the court could determine that all decision making for the child must be joint; meaning that the parents will have to communicate with each other before making major decisions about the child.[4]

In determining the best interests of the child for purposes of allocating decision-making responsibilities, the court shall consider all of the factors that it considers for parenting time, and the following factors:

  1. Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
  2. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;
  3. Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties;
  4. Whether one of the parties has been a perpetrator of child abuse or neglect…[in Colorado], or under the law of any state, which factor shall be supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of child abuse or neglect, then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue over the objection of the other party or the legal representative of the child.
  5. Whether one of the parties has been a perpetrator of domestic violence, which factor shall be supported by a preponderance of the evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of domestic violence, then it shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party or the legal representative of the child, unless the court finds that the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child.
  6. The court shall not consider conduct of a party that does not affect that party’s relationship to the child.

It is a common misconception that children will be given more time with the mother, simply because she is the mother. In the past, many states had laws that allowed for this kind of division of parenting time. However, today “in determining parenting time or decision-making responsibilities, the court shall not presume that any person is better able to serve the best interests of the child because of that person’s sex..”[5] This means that technically, both parents have an equal chance of having parenting time with their children. It is the other “best interest” factors that will ultimately determine what kind of parenting time each parent will have. As stated above, the Colorado legislature believes that it is in a child’s best interest to have parenting time with both parents and that both parents should share the rights and responsibilities of child-rearing.  

The court will consider the situation of both parties in determining the best interest of the child. However, if either party requests a genetic test to determine the biological parentage of a child, that request will not prejudice the requesting party in a determination of parental-responsibilities.[6] Further, if one party is absent or has left the home of the child because of domestic violence by the other party, such absence or leaving will not be considered in determining the best interest of the child.[7]

The courts want to ensure that children will always be safe and taken care of, therefore, “[i]n the event of a medical emergency, either party shall be allowed to obtain necessary medical treatment for the minor child or children without being in violation of the order allocating decision-making responsibility or in contempt of court.”[8] This means that whichever parent the child is with at the time of an emergency, that parent will be allowed to get medical care for the child, even if the medical-decision making has been granted to the other parent.

The parties to a divorce or allocation of parental responsibilities case are allowed to submit an agreed upon parenting plan or each party may submit a separate parenting plan for the court’s approval. These parenting plans should address what the parents want regarding both parenting time and the allocation of decision-making responsibilities. In this way, parties are allowed to show the court what their desires are for parenting time and decision-making.[9] The court is allowed to order that the parties go to mediation, to try and come up with an agreed upon parenting plan.[10] If no parenting plan is submitted, or if the court does not approve a submitted parenting plan, the court, on its own motion, shall formulate a parenting plan that addresses parenting time and the allocation of decision-making responsibilities.[11]

If you would like help navigating your child custody issues and drafting a parenting plan please give us a call at 303-708-1300.


[1] C.R.S. §14-10-124(1).

[2] C.R.S. §14-10-124(1.5).

[3] C.R.S. §14-10-124(1.5)(a).

[4] C.R.S. §14-10-124(1.5)(b).

[5] C.R.S. §14-10-124(3).

[6] C.R.S. §14-10-124(3.5).

[7] C.R.S. §14-10-124(4).

[8] C.R.S. §14-10-124(6).

[9] C.R.S. §14-10-124(7).

[10] C.R.S. §14-10-124(8).

[11] C.R.S. §14-10-124(7).

Will I get custody?

If you have ever been involved in a child custody case or you are about to begin one you most likely have heard the phrase “best interests of the child.”

In Colorado, child custody and visitation issues are based on the best interests of the child standard.  This is also known as Parenting time.

 

 

So when you ask, “what are my chances I’ll get custody”, here is a general list of what the courts use to analyze the “best interests of the child.”

  • The love, affection, and other emotional ties existing between the parties involved and the child.
  • The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
  • The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care.
  • The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
  • The permanence of the existing or proposed home or homes.
  • The moral fitness of the parties involved.
  • The mental and physical health of the parties involved.
  • The home, school, and community record of the child.
  • The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
  • The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and rents.
  • Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
  • Any other factor considered by the court to be relevant to the particular family.

Parenting time and decision making.
This is the often the most crucial issue in divorces. In determining where the children will live and when they will see each parent, and who will make the major decision for children until they are 19, the court is guided by one standard–the best interests of the child.  Allocation of parenting time, decision making, and a child support award will not be given to a parent as a reward or as punishment to the guilty parent but rather to the one most adaptable to the task of caring for the child and able to control and direct the child.

The courts will try to view it from the child’s best interest.

Other factors considered may include the age of the parent and child, the physical and mental condition of the parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live and the child’s wishes if the child is of sufficient age, intelligence and maturity to make such a decision. Allocation of parenting time and decision making can be modified after the initial decision is made, these changes are referred to as post-decree modifications. It is important to understand, however, how a pattern of parenting time may impact the ability to modify parenting time and the standard that will be applied in post-decree cases. The standard in post-decree modifications may not be best interests, but may be a much harder standard referred to generally as “endangerment”.

If the parties can not agree to an appropriate parenting time and decision making arrangement, then the Court will decide. An important factor to the court in most parental rights cases is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children’s lives.

An experienced family law attorney will know how to advocate on your behalf.

Image: FreeDigitalPhotos.net

What are the grounds for filing for divorce in Colorado?

Colorado is considered a “no fault” state. This means that you do not need the consent of your spouse to obtain a divorce, nor are the reasons why you want a divorce considered in granting the divorce. In Colorado, the courts can enter a divorce decree (referred to as a decree of dissolution) upon showing that:

  • One of the parties has lived in the state for 90 days prior to the commencement of the proceedings
  • The marriages is irretrievably broken
  • And those 90 days or more have elapsed since the court acquired jurisdiction over the other party either as a result of process or by the other party entering appearances.

How much will my divorce cost?

Unfortunately, there are no set numbers on how much your divorce will ultimately cost. You do have several options in lieu of trial that will cut costs such as mediation and settlement discussions.  Contact us.  We will sit down with you and go over your options.

Can I annul my marriage?

Annulments occur where you or your spouse can show that your marriage is invalid. Marriages can be invalid under the following circumstances:

  • A party lacked capacity to consent to the marriage either due to mental incapacity or infirmity, the influence of alcohol, drugs, or other incapacitating substances
  • A party lacked physical capacity to consummate the marriage and the other party did not at the time of the marriage know of the incapacity
  • A party was under the age as provided by law and did not have the consent of his/her parents or guardian or judicial approval as provided by law
  • One party entered into the marriage in reliance upon a fraudulent act or representation of the other party which act or representation goes to the essence of the marriage
  • One or both parties entered into the marriage under duress
  • One or both parties entered into the marriage as a jest or dare
  • Or law prohibits the marriage.

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Exploring Family Therapy with Lacerte Law

Counseling is the First Step

The Lacerte Law Firm strongly believes that prior to speaking with a Colorado family law attorney about divorce, couples should first explore family therapy, couples counseling, or individual therapy to fully investigate the problems that are contributing to difficulties within the marriage.

The Benefits of Family Therapy

A qualified therapist can assist in identifying points of contention within the relationship, and ask the kinds of questions that may stimulate both parties to begin thinking about potential solutions. The counselor can also offer viable suggestions on how to solve or minimize the problematic issues. For separating couples who are having difficulty communicating, a class in handling conflict may also be beneficial for them and their children. In Colorado, you can contact the Center for Divorce and Parenting by calling 303-771-5424.

Counseling for Your Children

When your children are also experiencing emotional difficulties and are exhibiting negative behaviors associated with thedivorce, counseling may also be helpful for them. Group counseling for children can be very effective as it often “normalizes” the divorce process for them, but sometimes family therapy may offer the best fit for your child. A mental health professional can help you to determine what type of counseling is the best fit for your child.

Finding a Qualified Therapist

Whether you are trying to save your marriage, or dealing with the emotional issues associated with divorce, working with a counselor, therapist or other qualified mental health professional can help you and/or your family sort through the confusion and sometimes conflicting emotions associated with marital transition.

To find a qualified mental health professional in your area, you can call your state’s psychological association or ask an experienced family law attorney for recommendations. Friends and associates who have experienced the divorce process may also be excellent resources for referrals.

Even if your spouse said it’s over, there’s much that you can do to turn things around. It might not be a bad idea to get your spouse a little gift from http://www.autumnavenue.com/