By: Jenny McDonald, Jones Law Firm, P.C.
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."
In Colorado, courts today have changed the way they talk about divorce. The legal term for Divorce is "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 is will be allowed to make major decisions like health care, education, 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…."
A court is allowed to make provisions for parenting time upon the motion 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:
- The wishes of the child's parents as to parenting time;
- The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
- 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;
- The child's adjustment to his or her home, school, and community;
- 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;
- The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
- The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
- 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;
- Whether one of the parties has been a perpetrator of domestic violence, which factor shall be supported by a preponderance of the evidence,
- The ability of each party to place the needs of the child ahead of his or her own needs.
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.
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:
- Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
- 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;
- 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;
- Whether one of the parties as 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.
- 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.
- 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.." 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. 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.
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." 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. The court is allowed to order that the parties go to mediation, to try and come up with an agreed upon parenting plan. 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.