Child Custody Attorneys In Denver Colorado
When children are involved, the divorce process doesn’t end once the final paperwork is filed. With children come often contentious and painful negotiations about ”“ and modification of ”“ parental rights, parenting time, and custody.
Today, these already complicated issues are further challenged by increasing needs of parents to relocate due to financial challenges brought on by the Great Recession. Additionally, non-married couples who separate but have children together also face sensitive and difficult decisions about children when they separate.
Our team has deep experience dealing with child custody and parental rights issues ”“ and we believe it is our duty and an imperative to help couples address custody and rights issues in ways that reduce the impact of divorce and protect children in the process.
Denver Child Custody Considerations
Parental Responsibilities is comprised of two main components that factor into the overall childcare plan.
The first is parenting time. This is the scheduled overnights when your child is physically with you or the other party. This would also include vacation time and holiday parenting time.
The second, is decision making. Decision making refers to who will make the major decisions regarding the child. Before your divorce, this area of parental responsibilities refers to decisions you would have made with your then spouse. These are things such as religion, education, medical care and extracurriculars.
In cases where the parents cannot communicate effectively, the court can award sole decision making to one of the parents.
Contested Parental Responsibility Cases
In contested cases, it is common to have an expert appointed to the case to help the court in determining what is in the best interests of the child. In these cases, a Child and Family Investigator (CFI) or Parental Responsibilities Evaluator (PRE) are the experts appointed by the court to investigate the parenting time issues and provide a report to the court with recommendations regarding parenting time and decision making.
The standard applied to determine the allocation of parental responsibilities is “what is in the best interest of the child”. In determining the parties’ parenting time, the court considers the following criteria:
- The wishes of the parents
- the wishes of the child if the child is sufficiently mature to express preferences
- the interaction of the child with his/her parents and siblings
- the child’s adjustment to home, school and community
- the mental and physical health of all parties
- the ability of the parent to put the child’s needs above their own
- the ability of the parties to foster a loving relationship between the child and the other parent
- whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support
- the physical proximity of the parents to the child
- any allegations of child abuse and domestic violence
Relocating with Children After Divorce
During a dissolution of marriage, some spouses consider relocating to another state, whether it be to pursue a new job opportunity, to be closer to family, or to get a fresh start. But, when children are involved, spouses may wonder whether a court will “allow” them to relocate or force them to remain in Colorado in order to have primary custody or have parenting time with their children. If you are considering a relocation following a dissolution of marriage involving children, and you state your intention to relocate to the court, then the court must create a parenting plan taking into account the fact that you will not reside in Colorado, even if you admit to the court that you would not relocate if the children are ordered to remain in Colorado.
In a recent Colorado Court of Appeals decision, In re Marriage of Morgan, the mother notified the court through a written notice of intent to relocate, at temporary orders hearing, via two parental responsibility evaluators, in the joint trial management certificate, and at the permanent orders hearing, of her intent to relocate to California. However, following the permanent orders hearing, the court ordered that the children remain in Colorado, additionally finding it would be in the children’s best interests if the parents exercised a year-round 5-2-2-5 parenting time schedule, which would be nearly impossible to implement if the mother, in fact, relocated to California. The Court of Appeals reversed the court’s decision, even though the mother indicated that she would not relocate if the children were ordered to remain in Colorado, given the number of times that the mother told the court of her intent to move to California.
A domestic relations court has no authority to order a spouse to live in a specific location. Rather, the court must accept the location in which both spouses intend to live, and allocate parental responsibilities, including parenting time, accordingly. If you intend on relocating following a dissolution of marriage, you should make your intent clear to the court early and as often as possible. If you do so, it does not matter whether you admit that you would not relocate if the children were ordered to remain in Colorado. The court cannot force you to remain in Colorado and must create a parenting plan in accordance with where you and your ex-spouse will reside following the divorce. The court may only fashion a parenting plan which includes you remaining in Colorado as an alternative, i.e., if you decide to remain in Colorado instead of relocating.
The Best Interest of the Child
Anyone participating in a proceeding which allocates parental responsibilities quickly becomes aware of the phrase “Best interest of the child.” Courts focus nearly of all their analyses around the best interest standard when allocating parenting time and decision-making responsibilities. C.R.S. 14-10-124 delineates nine factors courts must consider when determining what is in a child’s best interest as it pertains to parenting time, and an additional three factors for courts to consider in determining what is in a child’s best interest as it pertains to decision-making responsibilities.
Many of the best interest factors concerning parenting time are straight forward and pose little challenge to parties seeking to present their position to a court. The wishes of the child’s parents as to parenting time, for example, can be established through party testimony. The physical proximity of the parties to each other as this relates to the practical considerations of parenting time, another statutory factor, is typically addressed through stipulation (concerning the geographical distance between the parties) leaving party testimony to address the practical considerations of exchanging the children and transporting the children to and from school, appointments, and extracurricular activities.
Other statutory factors concerning parenting time are seemingly straight forward, but frequently pose unique evidentiary challenges. For example, “the wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule” provides multiple evidentiary facets to consider. Is the child presumed competent to testify? If not, is a competency hearing needed to provide the child with an opportunity to convey his or her parenting time preference? Even if a child is competent to testify most jurisdictions strongly discourage parties from having children testify in parental responsibility proceedings absent extreme or extraordinary circumstances.
There are a variety of other ways a child’s wishes can be communicated to courts. Some courts may allow testimony concerning statements made by a child that reflect the child’s wishes despite those statements being hearsay. Using expert witness testimony concerning the factual basis for an opinion is another common way of introducing evidence that might otherwise be kept out as hearsay. Courts often learn the wishes of a child through experts including child and family investigators, therapists, counselors, parental responsibilities evaluators, parenting coordinators, and decision-makers. To learn the child’s wishes firsthand courts may interview the child pursuant to C.R.S. § 14-10-126(1).
One factor commonly emphasized by courts is “the ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party”¦” Parties commonly want to focus their evidentiary efforts on highlighting the shortcomings of the other party. Although the facts and circumstances of particular cases often do call for the introduction of evidence that allocates fault, the importance of demonstrating the positive behaviors of a party which supports the bond between the child and the other party is often underutilized or overlooked.
There are numerous ways in which parties can demonstrate their ability to nurture, strengthen, and support the relationship between their child and the other parent through simple acts. For example:
A party can encourage and facilitate periodic telephone calls or FaceTime/Skype sessions between the child and the other parent during their parenting time;
A party can encourage the child to display a picture of the other parent in their home; and
The parent can encourage the child to discuss their failures and success with the other parent.
Additional statutory factors concerning the allocation of major decision-making responsibilities also fall under C.R.S. 14-10-124. Decisions involving a child’s education, medical and mental health treatment, and religious upbringing, are considered major decisions by courts. Courts may allocate decision-making responsibility with respect to each issue jointly between both parties or individually to one party. The additional decision-making factors under C.R.S. 14-10-124 are:
Ability of the parties to cooperate and make decisions jointly
Past pattern of involvement of the parties; and
Whether mutual decision-making will promote contact
Cases allocating decision-making responsibilities that involve allegations of domestic violence, child abuse, or neglect present another major consideration for courts. In allocating decision-making responsibilities in these cases courts must consider additional specific statutory requirements in determining what is in a child’s best interest.
If a court finds a party has committed an act of domestic violence then C.R.S. 14-10-124 dictates that it shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party unless the court finds credible evidence of the ability of the parties to make decisions cooperatively in the best interests of the child in a manner that is safe for the abused party and the child. The exception found within this rule grants courts significant discretion in its application unlike in cases where courts find a party has committed child abuse or neglect. In child abuse and neglect cases it shall not be in the best interests of the child to allocate joint decision-making over the objection of the other party, without exception.
Findings of domestic violence, child abuse, or neglect must be supported by a preponderance of the evidence. Courts generally give significant evidentiary weight to documentary evidence, including medical reports, police reports, or reports created by social service agencies. Testimony conveying acts of domestic violence, child abuse, or neglect should be as specific and detailed as possible to assist courts determine whether specific behavioral incidences are abusive.
Factors defining a child’s best interest on both parenting time and decision-making are not mutually exclusive. Often evidence presented in support of one factor can be readily applied to others. While it is not necessary for trial courts to make specific findings on each and every statutory factor, there must be some indication in the record the court considered the factors which were pertinent to the particular case before them.
Under Colorado law, if a couple getting divorced has kids, they will generally be required to take a one-time parenting class. This class lasts about four hours and costs roughly $60. In most cases, the divorce and child custody decisions will not be finalized until the class has been taken by both spouses.
When a divorce is pending, Colorado law prohibits either spouse from taking the children out of state unless they have either the permission of the other spouse, or the permission of the court.
It depends on if you were awarded sole decision-making responsibilities or not. In Colorado, “decision-making” refers to the authority to make decisions on the child’s behalf. If you have joint decision-making responsibilities, all decisions must be made together with your ex-spouse. However, if you have sole decision-making responsibilities, then you can choose where your kids go to school without permission from your ex-spouse.