What If My Child Does Not Want to Visit My Ex?

In the process of a divorce, the court will dictate a parenting plan. This plan outlines who can make decisions for your children, how often they visit which parent and when, and what each parent is responsible for. While this is helpful in most situations, when your child does not want to see your ex, it can be heartbreaking to follow your court mandated parenting plan. So what happens if your child does not want to visit your ex?

According to Colorado law, you do not have to force your child to visit your ex, if they do not want to. The only thing required of you by the courts is to promote your child engaging in the agreed upon parenting schedule. All this means is that you have to encourage your child to engage with their other parent. Additionally, you need to be able to truthfully tell a judge that you have promoted your child engaging in their time with their other parent. As long as you are able to do that, you do not have to force your child to do anything they do not want to do. To learn more about this, watch last week’s Ask an Attorney with David Kalisek. To schedule a consultation with David, or any of our other amazing attorneys, visit our website.

If I lose custody of my children, can I get it back?

Custody can be a very complicated process and it is important to understand what is going on, every step of the way. It can be especially confusing if your custody of your children is taken away. While this can be confusing and frustrating, it is absolutely possible for you to gain custody back, with a few exceptions.

How can I lose my custody?

When talking about regaining custody, it is first important to know why custody might be taken away. Your parental rights might be terminated if:

  1. Your home is deemed unsafe
  2. You have substance abuse issues
  3. People who frequent your home, like friends or partners, are dangerous or create an unsafe environment
  4. Abuse or neglect
Can I regain Custody? How?

In general, you will be able to regain custody, as long as your child has not been adopted since your loss of custody. When deciding if you should be able to regain your custody, the judge will take a few different things into consideration. For example, one of the deciding factors that the judge use is whether your child will benefit from a relationship with you. But the most important of all the deciding factors is whether you have made an effort to remediate, or change, the issues that led to your restriction of custody to begin with. This means that if you had an unsafe home, you will be expected to make your home safe for your children and if you have unsafe people around your home, you will be expected to remove them, and so on and so forth.

In most cases, all the court wants is for your children to have a safe and happy environment. As long as you can prove that you are providing this for them, the court will often return your custody of your children. As we always say, it is important to hire an attorney to help you navigate this process. Click here to learn more about the attorneys here at Divorce Matters!

 

What if I Believe My Spouse is Unfit to Take Care of Our Children?

If you believe that your spouse (or former spouse) is unfit to care for your children, there are a few possible routes to take. The route that you take will depend on the urgency and severity of the situation. If the situation does not require immediate attention, you can file a “Motion for Modification of Parenting Time”. If the situation is more urgent and needs to be remedied immediately, you can file a “Motion to Restrict Parenting Time” or you can call Child Protective Services (CPS). You can learn more about each of these options below.

Motion for Modification of Parenting Time

There are a few different routes to take depending on the severity of the situation. If your concerns do not require immediate attention, you can file a “Motion for Modification of Parenting Time” as discussed above. This motion may be filed every two years or as often as necessary, as long as you can prove that circumstances have changed. The change in circumstances could be a variety of things, including, but not limited to, moving, use of drugs or illegal substances, or the creation of an unsafe situation for children. In proving this change of circumstances, it may be helpful to hire a third-party investigator, called a Child and Family Investigator or Parental Responsibilities Evaluator. To be clear, this is not an immediate solution and will take a minimum of 3 months to complete. Following a minimum of 3 months, the court may deny the modification and elect to keep the parenting plan consistent or modify the plan in line with the requested modification or in any way the court sees fit to modify the parenting time agreement.

Motion to Restrict Parenting Time

If your situation is more urgent, there are two roads that will lead to a quicker resolution from the court. One of these options is to file a “Motion to Restrict Parenting Time”. This motion must include the reasons that you believe the children will be endangered, either physically or emotionally, by remaining in the care of the opposing parent. The court is required to set a hearing date within 14 days of filing this motion, making it significantly quicker than filing a “Motion for Modification of Parenting Time”. When the date of the hearing comes around, you should make sure to bring any evidence you have that your children are not safe with the opposing parent. It is important that this evidence is not just what your children have told you, as this can be considered “hearsay” and may not be admissible evidence. If the court finds that you are correct and the other parent is physically or emotionally endangering the child, there may be steps or restrictions put into place that the opposing parent must go through if they want to regain any parenting time. For example, if the opposing parent has been using drugs, the court may order a rehabilitation program before they are allowed to regain any parenting time. The court can also restrict or reduce the opposing parent’s parenting time. It is important to remember that this is a very serious claim and should not be filed without base. If this motion is found to be baseless or vengeful, the court may require you to pay the opposing parent’s attorney fees.

Child Protective Services

The second option for a more urgent case is contacting Child Protective Services (CPS). CPS is a government agency that investigates claims of child abuse or neglect. This is the most serious action and will result in the most immediate response. Before getting more into this process, it is important to note that calling CPS on the opposing parent will also invite CPS to investigate you. The organization is meant to make decisions in the best interest of the child and they cannot do this without investigating every aspect of your children’s lives.  This investigation will include interviewing both parents, various witnesses, and the children themselves. CPS will generally make findings of the best situation for the children without initiating action through the court. In more severe cases, however, CPS will initiate action through the courts called a “Dependency and Neglect Action”. This may result in the child being removed from the unsafe environment, supervised visitation, reintegration therapy, substance abuse monitoring, or any action that the court feels is appropriate to the situation.

Can My Citizenship Status Affect My Divorce?

Divorce can be a difficult process on its own, but when you have citizenship concerns it can become even more daunting. However, if you arm yourself with knowledge about your situation you can properly prepare yourself for what to expect.

Is there any difference in the divorce proceedings or parental rights hearings if I am not a U.S. citizen or if I have recently become a U.S. citizen?

The short answer is no! The proceedings should continue exactly as they would if there were no citizenship concerns. If you have recently become a citizen, there are no concerns as to the status of your citizenship, because your citizen status cannot be taken away due to your divorce.

Will divorce affect my green card status?

This question has a more complicated answer than the first! To understand how divorce might affect your citizenship status, you first have to understand how the citizenship process works. To become a citizen, you must have a green card. In order to get that green card, through marriage, immigration officials must confirm that your marriage is a “bona fide” marriage. This just means it cannot be a marriage for citizenship. After you get your green card, you have to retain it for a certain amount of time, usually 5 years, to gain your citizenship. However, this time shortens from 5 years to 3 years if you are married to a U.S. citizen. If you do file for divorce before the 3 years is up, you will not have your green card revoked, however you will have to wait the 5-year waiting period for citizenship, as opposed to the 3-year waiting period when you are married to a U.S. citizen. This also holds true if you have been married longer than 3 years, but less than 5 years, and have not yet filed for citizenship. If you have already had your green card for 5 years before you file for divorce, however, the divorce will have no bearing on when or if you can file for citizenship.

If the divorce is contentious and your ex-spouse claims that the marriage was not bona fide, the case can become a little bit more difficult. If you already have citizenship, this will not affect your citizenship. If you still have your green card, you will just have to prove that the marriage is or was bona fide, either by what immigration officials have already proven or by your own evidence, to continue in the citizenship process.

What if I am undocumented? Can I still get a divorce?

If you are undocumented, you can still get a divorce and proceedings will continue as they would for any other divorce case. It is important to note, though, that anything you say in divorce court can also be used against you in immigration court. Because of that, if you are undocumented, it is wise to retain an immigration attorney as well as a divorce attorney in the case that you do want to file for divorce. Being undocumented could also make parenting agreements difficult, especially if you are deported or leave the United States. Again, in this case it is important to retain an immigration attorney, as well as a divorce attorney, to protect your parental rights.

What If I Need To Change My Parenting Schedule For The School Year?

Can parenting time arrangements be changed for the school year?

Parenting time arrangements may need to change during the school year. If a school year arrangement was not considered in the original parenting plan or the original school year arrangement needs to change, a modification request will need to be submitted to the court or agreed upon by both parents. As far as what the court may or may not approve, the court looks into a few different things when considering a school year parenting arrangement. These factors can include:

  1. The distance between parties and the school. The court will often try to prevent kids from traveling huge distances to and from school, so one party being significantly closer to the school can affect who will have more weeknight parenting time.
  2. Record for school attendance. If one party shows an inability or unwillingness to get the kids to school on time or consistently, the court will take this into consideration.
  3. Ability to assist with schoolwork. If one party shows an inability or unwillingness to help with schoolwork or encourage education, the court will consider this.
  4. Parents’ work schedules and alternate care arrangements: The court may award more weeknight parenting time to one parent if that parent has more appropriate before and after school care, or even overnight care, depending on the parent’s schedule
  5. History of giving up parenting time. If you have a history of giving up or rescheduling parenting time, the court may consider less parenting time for you so that the children may have a more consistent schedule.
If we want to change our parenting arrangement for the school year, how do we do it?

Unless both parties agree to the changes to the parenting plan, the modification will likely take a good bit of time, so it is a good idea to get started on the process as soon as possible. That being said, if both parents can agree on the modifications, the process is fairly easy. After an agreement has been reached, the parents will need to file a “Stipulated Modification of Parenting Time” with the court. The court will then review this document and, most likely, accept the changes to the parenting plan. It is important to remember that until the court approves the changes to the parenting plan, it is important to stick to the most recent parenting plan that was ordered by the court.

If the parents cannot come to an agreement on how to change the parenting agreement, the process is a little different. The first step is to look at your current parenting plan and determine if that plan requires the parents to attend mediation. Parenting plans often require the parents to attend mediation before any documents are filed. Even if mediation is not required by your parenting plan, it can still be a helpful tool in reaching an agreement with your former spouse amicably and quickly. If mediation is not required, you need to file a “Motion to Modify Parenting Time” with the court. Once this paperwork is filed, the court will set an “initial Status Conference” and provide a “Case Management Order”. Both of these will help determine the path forward, including dates and requirements to change the parenting agreement. The final step is the “Final Orders Hearing”, during which you can present facts, testimony, and evidence to support your reasoning behind the request to a modification of the parenting agreement.

What if I believe my spouse is unfit to have custody of our children? What do I do?

There are a few different routes to take depending on the severity of the situation. If your concerns do not require immediate attention, you can file a “Motion for Modification of Parenting Time”, as discussed above. This motion may be filed every two years or as often as necessary, as long as you can prove that circumstances have changed. The change in circumstances could be a variety of things, including, but not limited to, moving, use of drugs or illegal substances, or the creation of an unsafe situation for children. In proving this change of circumstances, it may be helpful to hire a third-party investigator, called a Child and Family Investigator or Parental Responsibilities Evaluator. To be clear, this is not an immediate solution and will take a minimum of 3 months to complete. Following a minimum of 3 months, the court may deny the modification and elect to keep the parenting plan consistent or modify the plan in line with the requested modification or in any way the court sees fit to modify the parenting time agreement.

If your situation is more urgent, there are two roads that will lead to a quicker reaction from the court. One of these options is to file a “Motion to Restrict Parenting Time”. This motion must include the reasons that you believe the children will be endangered, either physically or emotionally, by remaining in the care of the opposing parent. The court is required to set a hearing date within 14 days of filing this motion, making it significantly quicker than filing a “Motion for Modification of Parenting Time”. When the date of the hearing comes around, you should make sure to bring any evidence you have that your children are not safe with the opposing parent. It is important that this evidence is not just what your children have told you, as this can be considered “hearsay” and may not be admissible evidence. If the court finds that you are correct and the other parent is physically or emotionally endangering the child, there may be steps or restrictions put into place that the opposing parent must go through if they want to regain any parenting time. For example, if the opposing parent has been using drugs, the court may order a rehabilitation program before they are allowed to regain any parenting time. The court can also restrict or reduce the opposing parent’s parenting time. It is important to remember that this is a very serious claim and should not be filed without base. If this motion is found to be baseless or vengeful, the court may require you to pay the opposing parent’s attorney fees.

The second option for a more urgent case is contacting Child Protective Services (CPS). CPS is a government agency that investigates claims of child abuse or neglect. This is the most serious action and will result in the most immediate response. Before getting more into this process, it is important to note that calling CPS on the opposing parent will also invite CPS to investigate you. The organization is meant to make decisions in the best interest of the child and they cannot do this without investigating every aspect of your children’s lives.  This investigation will include interviewing both parents, various witnesses, and the children themselves. CPS will generally make findings of the best situation for the children without initiating action through the court. In more severe cases, however, CPS will initiate action through the courts called a “Dependency and Neglect Action”. This may result in the child being removed from the unsafe environment, supervised visitation, reintegration therapy, substance abuse monitoring, or any action that the court feels is appropriate to the situation.

The Child Custody Process

The child custody process can be stressful for both parents and children. But knowing the basics of the process ahead of time, as well as what documents you might need to collect, can help the process run a little smoother and reduce the impact to your children.

What is the Child Custody Process?

The child custody process in Colorado is referred to as Allocation of Parental Responsibilities, or APR for short. Either parent, or even stepparents, grandparents, or guardians, can initiate the custody process, or APR action, by filing a Petition for Allocation of Parental Responsibilities with the court. For the parent to be able to file in the state of Colorado, in most cases the child has to have lived in the state for 6 months before filing. There are some exceptions to this rule, but the 6 months requirement is what will generally be used.

During the child custody process, the court will address three main things:

  1. parenting time, or what is called physical custody
  2. decision making for the child, including decisions regarding education, medical needs, religion, and extracurricular activities
  3. child support
How Is Child Support Determined?

To help the judge decide on these three core areas, each parent will also need to complete a Sworn Financial Statement and mandatory Financial Disclosures. Both of these documents will help the court determine who will pay child support, if at all, and how much they will pay. That number will be based on a formula that Colorado courts use, which takes into account the parents’ incomes, the number of overnights the child or children will spend with each parent, and the payment of other expenses for the child or children, which can include childcare expenses, insurance, or education costs. You can estimate what your child support costs might be using Divorce Matters’ Child Support Calculator.

What do the Courts Look at When Determining Parenting Time and Decision Making?

As far as parenting time, or physical custody, and decision making, the court will determine the amount of parenting time and decision making based on the “best interests standard.” This standard can be subjective and is based on a variety of factors. Because of this, it is a good idea to begin to gather evidence of your involvement in your child or children’s life. This can include involvement in schooling, medical needs, and extracurricular activities, as well as the child or children’s connection to your home, their school, and community, and an ability to co-parent, encourage, and love.

Sometimes a neutral, third-party professional, known as a Child and Family Investigator (CFI), is appointed by the court to help make recommendations regarding parenting time and decision making. The Child and Family Investigator will get to speak to the children and get to understand their preferences and feelings toward the situation. This can be especially helpful because children are generally not allowed to testify before the court. With the CFI, the court and the judge will be able to hear and take the child’s opinion into account. In addition to the above, each parent should be prepared to attend a co-parenting class. Judges will often require this class, so it’s a good idea to plan to attend ahead of time.

How Long Does the Process Take?

While there’s no set timeline for how quickly these cases move, it just depends on how well the parents are able to comply with the court’s requirements and reach an agreement. If you are able to reach agreements regarding parenting time early in the process it could take as little as a couple of months to complete the process. As with most legal processes, it will be shorter and less expensive if an agreement can be reached outside of court! And as always, the process will run far smoother if you have an attorney to guide you along in the process. Divorce Matters has a variety of attorneys who are experienced in child custody matters and are able to help!

Will I be Affected by Changes to the 2021 Child Tax Credit?

Recently it was announced that under the American Rescue Plan Act the expanded Child Tax Credit would be distributed differently in 2021. This year, half of the tax credit will be distributed on a monthly basis beginning in July and the other half will arrive with your 2021 tax refund. While this tax credit is a welcomed relief for many families who are struggling to make ends meet, it also spells confusion for most folks who are going through or already divorced.

How will this tax credit be distributed if I am divorced?

The Child Tax Credit can only be claimed on one tax return, so if you are divorced or filing separately this means that only one parent will be able to claim the tax credit. A court order or separation agreement will name the person eligible to claim the tax credit, this is typical whichever parent has primary custody. There are several ways a 50/50 custody arrangement might address this, for example, some may choose to file with the tax credit every other year.

Can the courts rule that this year’s tax credit be split?

In most cases, the courts will follow whatever was agreed upon in your separation agreement or court order. However, this is not the end of the line if you wish to treat this year’s tax credit differently. For example, if your ex claims the tax credit every year but you are able to come to an agreement with them that you will file for the tax credit this year, you can file an IRS Form 8332. This form is a right of tax benefit transfer, which would allow you to claim for this year. Please be aware that it is important you check with your attorney first before moving forward with anything that deviates from your separation agreement. We also suggest seeking out a tax professional for help with filing your taxes.

Can the tax credit payments be garnished for child support if I am behind on my payments?

Per the American Rescue Plan Act, this tax credit is not subject to garnishment meaning you will receive the full amount from the government. However, this does not protect that payment from garnishment or levy once the money is in your bank account. Another consideration is that while it won’t be garnished when distributed when you file your taxes at the end of the year it may be subject to offset.

What do I do if the tax credit was claimed by my ex, but I was supposed to claim it this year?

The best way to handle this is to get in touch with your attorney. They will be able to help you chart the best course of action, whether that be reaching out to negotiate with your ex and coming to an amicable resolution, or filing a motion of contempt with the courts.

If you have questions, please reach out to one of our experienced attorneys today.

Attorney Brooke Shafranek Answers Your Questions Regarding COVID-19 and How It Affects Your Divorce

Divorce Matters attorney Brooke Shafranek answers questions submitted from the community.

https://youtu.be/vQBnBmm3a0U

Q. Can I still get a divorce? (0:18)

Q. What can I do if I’m experiencing an emergency, such as domestic violence or child abuse? (2:30)

Q. Co-parenting, parenting plans, what happens if we need to deviate or I and my ex disagree? (3:04)

Q. What will happen with the stimulus checks that the government is sending out? (3:53)

Contact us for more information or to schedule a video or phone consultation:  720-542-6142

Is 50/50 Visitation Best For My Children?

A shared custody agreement often involves children splitting their time between two households — mom’s and dad’s. A 50/50 time split may seem “fair” on the outside looking in, but it might not be in the child’s best interests based on a number of factors. When considering a 50/50 split between two parents, lifestyle elements must be taken into consideration. Things like work schedules, school schedules, after school sports or club activities, and how open (or not) communication is between the parents. Also, the emotional support or lack thereof that the child receives from each parent should be considered.

 

If one parent leans on the child for emotional support in a kind of role reversal, when parents live together the child can turn to the other parent for emotional support, but when parents no longer live together, this role reversal can be too burdensome for a child. Adjusting to two different parent styles when parents live apart may be impossible for children, especially when they are quite young. What is in the best interests of the child or children should be the deciding factor in determining a “fair” custody arrangement.

 

Six Common Types of 50/50 Visitation Schedules

If a split visitation schedule is determined to be in the best interests of the child or children, there are several different types of common residential schedules where each parent has the child for 50% of the time.

 

Here are six common types of 50/50 visitation schedules:

 

1) Alternating Weeks – Your child or children spend one week with one parent and the next week with the other parent.

 

2) Alternating Every 2 Days – Your child switches between parents every 2 days.

 

3) 2-Weeks Each – Your child spends two weeks with one parent and then two weeks with the other parent.

 

4) 3-4-4-3 Schedule – Your child spends three days with one parent, the next four days with the other parent, then the child spends four days with the first parent, followed by three days with the other parent.

 

5) 2-2-5-5- Schedule – Your child spends two days with each parent and then five days with each parent.

 

6) 2-2-3 Schedule – Your child spends two days with one parent, then two days with the other parent, followed by days with the first parent. The next week the pattern switches.

 

You may find that one of these common schedules works best for you and your children after divorce, or you may come up with a totally different visitation schedule that accommodates everyone’s needs and works best for both parents and children. 50/50 schedules can benefit a child by giving the child substantial time living with both parents, allowing the child to feel cared for by both parents and build a close relationship with both parents. However, it is vital that parents consider the best interests of the children first, over their own preferences or convenience. Switching households back and forth all the time can be difficult for children, and sometimes rather than giving them a sense of shared parenting or stability, it can cause the children to feel as though they don’t really have a stable home anywhere.

 

If you decide a 50/50 schedule is for you, keep in mind that these schedules work best when parents live close to each other, so exchanges are easier. The ability to communicate with each other about the child without fighting also helps facilitate a 50/50 schedule. In addition, if the child is able to handle switching between his or her parents’ homes without causing undue stress, and both parents are in agreement that the 50/50 schedule is the best one for their child and are committed to putting the child’s best interest first, this split schedule can work well for all concerned.

Advice on Co-Parenting During the Coronavirus

By Attorney Ashley Balicki

I wanted to give you some guidance and general advice to co-parent through this new and confusing period.

  1. Decision-Making: If you, a member of your household, or your child are diagnosed with COVID-19 immediately advise the other parent. Do not hide this information. Communicate with your child(ren)’s parent and agree on uniform practices in both households. For example, parents should confer with one another and agree upon uniform practices with the child(ren) in each household such as not having play dates or having children visit others outside outdoor activities at each home and communicating with extended family members via telephone/FaceTime. If you must convey information or diagnoses to your child that may alarm or upset your child, speak with the other parent to create a joint message before speaking with the child.
  2. Parenting Time: Use common sense, if a member of your household is known to have had contact with an infected person or the children were known to be infected in one household, communicate this to the other parent. Agree on where the children will remain during this time if it no longer makes sense to abide by the court ordered parenting time plan for safety reasons. It is unlikely courts will penalize parents for alternating their parenting time schedule as a result of safety measures taken to protect the child(ren).
  3. Childcare: Parents should confer about childcare needs based upon their respective work schedules and work to provide care themselves rather than bring in third parties unless absolutely necessary.
  4. Adaptation: Be reasonable an adaptable. These are hard and stressful times on everyone. The changes brought about because of public safety issues and concerns are temporary. Put your child’s safety first and keep on keeping on.
  5. Make a Record: If parenting time is at variance with the court ordered parenting time, keep your own record of how the arrangement came about, when it was agreed upon, and what the new arrangement is, and how long it is to last. Then, to avoid misunderstandings, confirm it in email to the other parent. This might avoid real and current case confusion, or a later claim that there was no agreement to a different one,
  6. Medications: Make sure each household has an ample supply of any medications the child(ren) may need for the potential period of altered circumstances.
  7. E-Learning: Long term e-learning practices are new for many parents. Be sure to stay on top of your children’s daily work. Communicate with the other parent about the child’s schooling. If one parent is better suited to address these responsibilities by virtue of their work schedule, consider allowing that parent to perform this function daily.
  8. Travel: Consider canceling spring break plans, which may be involuntary as the situation unfolds.
  9. Child Support: If you experience financial difficulty during this time as a result of job loss or temporary loss of income, a child support modification may be warranted. Please contact us if this becomes an issue.
  10. Emergency Matters: Understand that disputes and issues that might arise regarding your child(ren) are going to have to be resolved in some many other than going to court. Rapid access to the court and the ability to obtain a hearing will be severely diminished for some time. It may be necessary to have counsel confer, mediate by phone or video conference, or take other creative steps to arrive at an amicable solution.

Questions: Inevitably as you navigate this path, questions will arise. Please do not hesitate to contact us with any questions you may have, either by phone at 720-542-6142 or fill out our contact form here.