5 Myths about Child Custody and Support

  1. Mothers always get custody of the kids

False! The court will always choose what is in the best interest of the child. The court will examine all of the evidence, with their only goal being to make a decision that is best for your child, whether that be the father having custody, the mother having custody, neither having custody, or both having custody!

2. If we have joint custody, I won’t have to pay child support

True and False! The way that the court determines child support is based on a statutory calculation that takes into account each parent’s income, how much time each parent has custody of the children, and the children’s expenses, like clothes, insurance, school costs, etc. To calculate what you may pay in child support (or spousal maintenance), you can use Divorce Matter’s Child Support Calculation App! If you have joint custody and you already do pay for a portion of the child’s monthly expenses when they live at your house, you may already pay enough and do not need to pay any additional money in child support!

  1. I can deny visitation if my ex does not pay child support

False! Visitation is a separate issue from child support and therefore if visitation rights are outlined in the parenting agreement, those rights cannot be withheld based on failure to pay child support. It is important to follow the parenting agreement exactly as written, otherwise, you may get in trouble with the court as well! The best course of action is to speak with your attorney about notifying the court that your ex is not paying the proper child support. The court will then decide what action is best to take and you will remain free and clear of any trouble!

  1. The kids get to choose which parent they live with

False! As mentioned above, the court takes only one thing into account when deciding who should receive custody of the children: the best interest of the children. That means that the judge will take into account many of the different factors that affect this, including the wishes of the children. However, this isn’t the only factor the judge will consider so while this is taken into account it is not necessarily how the judge will rule.

  1. My ex can move out of state with the kids without my consent

False! While it is true that your ex can move your kids out of state without asking you before you file, once the paperwork has been filed for separation or for a parenting agreement, there will be an injunction placed on moving the children. This means that, regardless of permission, the children will need to stay exactly where they are!

Are Same-Sex Divorces Handled the Same As Heterosexual Divorces?

With tides having turned in the struggle for LGBTQ+ marriage rights over the last decade, often questions about whether there are any differences when it comes to marriage for same-sex couples arise. Are these marriages the same as heterosexual marriages? And what about the divorces?

How is same-sex divorce different from a divorce between a heterosexual couple?

Because same-sex marriage is legal in Colorado there is virtually no difference between same-sex divorce and heterosexual divorce. This means that you can either be a petitioner and respondent or petitioner and co-petitioner. After that, the divorce will proceed as a heterosexual divorce would.

How will child support and custody factor into a same-sex divorce?

Because many same-sex couples have children, this is a question that is often at the forefront of the couples’ minds. However, the court will proceed as they would for any divorce. Regardless of whether or not the child is biologically yours, or adopted by one or both parents, the court will determine parenting time based on the best interests of the child. If both parents are adoptive parents, they are both treated as if they are legal parents to the children. This is the same if one party is the biological parent and one party is an adoptive parent.

Additionally, child support will be calculated using the same calculation as in any other child support situation. If you’re curious what child support might look like in your particular set of circumstances, check out our calculator.

If you are interested in common law marriage divorce or divorce for LGBTQIA+ couples, you can learn more here. You can also find more materials discussing same-sex marriage on our website.

Who Makes Religious Decisions for My Child?

In the midst of making a parenting agreement, the thought of religion can often fall to the wayside while parenting time and holidays take precedent. However, religion can be incredibly important. But who gets to make the religious decisions for your child?

What is the difference between religious activity and religious indoctrination?

When discussing religious decisions, it is important to make the distinction between religious activities and religious indoctrination. Indoctrination is the introduction of religion. This includes events like Bar or Bat Mitzvahs, First Communions, Baptisms, and Confirmations. Religious activities, on the other hand, are any activities that include religion, like church services, temple services, prayers, or bible study.

 
Religious Indoctrination

That being said, an act to indoctrinate a child into a religion would require the agreement of both parents IF both parents have joint decision-making responsibility. However, if only one parent has decision-making responsibility, there is an argument that the parent with decision-making responsibility can make the decision to indoctrinate their child into whichever religion they choose.

 
Religious Activities

However, when it comes to religious activities, the rules are a little different. If both parents have joint decision-making authority, then either parent may allow the child to engage in religious activities. Parents also do have a fundamental right to raise their children based on their respective religion, as long as those religious beliefs or practices do not put the child in danger. This means that whether or not a parent has decision-making authority, they can have their child participate in whichever religious activities they so choose.

 
What happens if we cannot agree on what religious tradition to raise our child in?

Because there has to be an agreement on religious indoctrination if there is joint decision-making authority, there can be a conflict between parents on what is and is not allowed for their child. Conflict can also occur if each parent is having their child engage in conflicting religious activities, regardless of decision-making authority. In the event that there is a dispute concerning the religious upbringing of the child, the court will consider the harm to the child from conflicting religious instructions or practices. If there is harm caused to the child from such conflict, the judge may enforce a limitation on either parent’s ability to indoctrinate the child into a specific practice.

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.