Child Custody and Parental Rights in Colorado
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Parents have highly protected legal rights to parent their children and seek support for their children.
Parental rights (known in courts as parental responsibilities) include child custody (parenting time) and legal custody (decision-making).
Colorado courts have the authority to establish parental responsibilities in disputes between parents.
This is done in domestic relations cases between married parents called a Dissolution of Marriage (or divorce), and between unmarried parents in an Allocation of Parental Responsibilities (“APR”).
What are Parental Responsibilities in Colorado court cases?
Courts determine both physical and legal custody in disputes about parental responsibilities. Physical custody is called parenting time. Legal custody is called decision-making.
When is child custody decided in a Colorado divorce?
Custody decisions can be made by agreement of the parties or by the Judge at a temporary orders hearing or permanent orders hearing.
A temporary orders hearing may be used early in a divorce case if custody is disputed. The order then applies only during the pendency of the case. The ultimate determination of custody for an indefinite period of time beyond the divorce is determined at a Permanent Orders hearing.
Parenting time may be modified later if it is in the best interests of the child. However, it can be hard to change a schedule once it is established, so it is important to consult a divorce attorney to obtain the best parenting time schedule possible during your divorce case.
How is Parenting Time determined in Colorado custody cases?
If you have minor children, then the Court will require you and your spouse/co-parent to establish a parenting time schedule. This is a schedule that determines which days the children are with each parent. Here are examples of parenting time schedules.
Colorado law requires that Courts allocate parenting time in the children’s best interest. There are a number of statutory factors that the Court applies to the facts of each case to determine what allocation of parenting time is in the “best interest of the child.”
In practice, judges in Northern Colorado lean toward allocating equal parenting time to both parents unless it is not practical based on the geographical location of the parents or if there are substance abuse, domestic violence, or severe mental health issues. There is no presumption that a single parent should be the primary caregiver.
At what age can a child decide which parent to live with in Colorado divorce?
There is no specific age in Colorado at which a child may decide which parent to live with in divorce or custody cases. The judge merely considers the child’s wishes to the extent they determine the child is sufficiently mature to express a reasoned and independent preference. A child’s wishes are never determinative, they are just one of the best interest factors considered.
In practice, we see Judges and Child and Family Investigators not giving much weight to a child’s preferences until they are well into their teen years, unless there are serious relationship or abuse issues with a parent. Even in their teen years, Judges still look at whether the decision is in the child’s best interest or whether there is an ulterior motive (i.e. the child is selecting the less strict parent).
Can my child talk to the Judge in my custody case?
It is extremely rare for a Judge to ever agree to hear a child’s wishes for parenting time directly from the child. Children are rarely ever permitted to testify in their parents’ custody case. Interviews with the Judge are almost as rare.
The wishes of children are usually presented as evidence in a case through the children’s statements to a Child and Family Investigator. Otherwise, children’s statements as to their wishes do not usually come into evidence in a case. The best evidence of which parent a child wishes to spend time with is which parent the child actually spends time with. It is important during divorce to establish a new normal and to nurture your relationship with your child.
Judges usually do not accept written statements from children into evidence. First, these are hearsay statements easily excluded from evidence by an attorney. Second, these are seen as likely biased by the parent who encouraged the child to prepare the statement.
In preparing your case it is important to avoid the appearance of coaching your child to act in your favor. Coaching can backfire and end up painting you as a manipulative parent trying to harm your child’s relationship with your co-parent.
What is Decision-Making Authority in Colorado custody cases?
Decision-making authority is the authority to make decisions on major issues for the children, including education, medical, and religion. The most common outcome is for the Judge to determine that decision-making authority is joint on all issues.
In deciding how to allocate this authority, the Court is to apply the statutory best interest of the child factors as well as the following factors:
(1) whether the parties can cooperate and make joint decisions;
(2) whether past involvement indicates an ability by the parents to be mutual decision-makers;
(3) indicia that the parents, together, can provide a positive and nourishing relationship with the children; and
(4) whether joint decision-making responsibility for any, or all, or some issues would promote more frequent or continuing contact between the children and each parent.
What does "best interests of the child" mean?
In Colorado, the court will review your parenting plan to ensure that the allocation of parental responsibilities, including parenting time and decision-making responsibilities, are in the best interests of the child. The court will apply a number of statutory factors to the facts of your case to make that determination.
Parenting Time
Under that statute (C.R.S 14-10-124), the court considers the following factors to determine whether the allocation of parenting time is in the child’s best interest:
(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; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party's protective actions shall not be considered with respect to this factor;
(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; and
(9) The ability of each party to place the needs of the child ahead of his or her own needs.
As you can see, the determination is very fact specific.
Decision-making
To allocate decision-making responsibilities, the Court considers the above factors in addition to 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.
