Just from our name, it’s easy to tell that we excel in divorce law, but what other kinds of cases can Divorce Matters handle? We are a law firm specializing in family law. Family law covers a wide variety of different cases including:
Holiday Gift Buying: Are you and your co-parent on the same page?
Holiday gift buying can be difficult if you don’t know what your co-parent will be buying your children. To stop the stress, it’s best to be on the same page well before the holidays. There are a few different steps to take when getting on the same page.
- Coordinate Gifts: This is the best way to make sure that there are no double purchases! If your child is giving the same list to both parents , it’s likely that there could be duplicate gifts. This can be entirely avoided by one simple step: dividing your child’s list between the two of you. Not only will this ensure that there are no duplicate presents, but it will also ensure that gift buying is “fair” amongst both parents.
- Coordinate Your Budget: Coordinating your budget is equally as important as coordinating which gifts you will buy. Coordinating your budget to be fairly equally between parents will ensure that there can be no competition when buying gifts. Additionally, it sets a limit for what is appropriate for your child and allows each parent to be on the same page with the other.
- Try Not to Undermine the Other Parent: If one parent would like to buy the child a present that the other parent does not find appropriate, try to come up with a solution that works for both of you. It’s best to have an honest and adult discussion on what is best for your child.
- Put Your Children First: This is the final and most important step! The holidays are the perfect time to enjoy the simple childhood joy of gift-giving and receiving. Put your children first in everything that you do and you and you co-parent will have a wonderful holiday season, together, with your children!
When Should I File For Emergency Child Custody?
Child custody can be a tough subject to discuss and it can be even harder if you believe your child might actually be in danger. So what should you do if you think that your child is in danger when spending time with their other parent? One option is to file for Emergency Child Custody.
What is Emergency Child Custody?
Emergency Child Custody is essentially a Motion to Restrict Parenting Time. And what is a Motion to restrict Parenting Time? This motion indicates to the court that one of the parents of the child would like to restrict the parenting time of the other parent based on the child being endangered. It is a motion filed with the court which requires the court to rule on it within 14 days of filing. During those 14 days, the courts will appoint a third party to supervise any parenting time until the motion has been ruled on.
Which Factors Should I Consider Before Filing for Emergency Child Custody?
There are three things you should consider before filing for Emergency Child Custody.
- Is it an emergency?
- Is your child in immediate danger?
- Does evidence of child endangerment exist?
Making sure that the answer to all of these questions is a resounding “yes” will ensure that you will be able to get Emergency Child Custody. It is important to note that your child’s other parent does not have to be the person who is endangering your child. If the endangerment to your child comes from someone who is around your child because of your child’s other parent, then this does count as child endangerment on behalf of our child’s other parent.
What If My Child Needs Out Faster than 14 Days?
If you believe that your child is in immediate danger, you always have the option to call Child Protective Services. Calling CPS is the most serious action you can take and will get you the most immediate response. CPS will interview both parents, witnesses, and the children and may tour each parent’s house and environment. They will then make certain findings without initiating an action within the court, meaning CPS is a quasi-adjudicatory body. They may also initiate an action through the courts called a “Dependency and Neglect” action in the more severe cases of abuse and/or neglect and may remove the child from the unsafe environment. It is important to note, calling CPS on the other parent also brings in CPS to investigate you and make decisions in the best interest of your child. While you may have nothing to worry about in terms of your parenting, by inviting CPS into your child’s life, you are also going to be held to certain standards and possibly made to comply with certain requirements under a safety plan issued by the department or the courts (or both in conjunction)
No matter what you decide to do, just know that your child is what matters most and you should act in their best interest at all times. The court will do the same and make rulings on what is best for your child, after taking in all of the evidence and the facts. To schedule an initial consultation with an attorney to discuss the steps you would like to take to obtain Emergency Child Custody, click here.
5 Myths about Child Custody and Support
-
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!
-
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!
-
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.
-
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:
- Your home is deemed unsafe
- You have substance abuse issues
- People who frequent your home, like friends or partners, are dangerous or create an unsafe environment
- 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.