Custody / Decision Making

“Colorado removed the word custody from most statutes in favor of parental responsibilities…”

What is Custody / Decision Making?

Colorado removed the word custody from most statutes in favor of parental responsibilities, which include decision-making, parenting time and child support.

Decision-making is usually affiliated with “custody,” however, some may associate it with parenting time or when a parent has physical care of a child. In any event, decision-making can often be a high conflict issue.

Most practitioners will tell you that Colorado favors joint decision-making.

Most practitioners will tell you that Colorado favors joint decision-making. Indeed, the Courts prefer that parties work together and co-parent for the benefit of their children. However, there are certain circumstances in which the Court may award sole decision-making to one party. The most common of which includes domestic violence. If the Court finds that there is a history of domestic violence by a preponderance of evidence, the Court may not order joint decision-making over the objection of the victim parent. Just because a party may not have been convicted of domestic violence in a criminal case, where the burden of proof is beyond a reasonable doubt, allegations of domestic violence are very common in parental responsibilities cases. Furthermore, when the parents have an overwhelming inability to communicate, the Court will often award sole decision-making to one party. Less often, the Court may split decision-making, such as award education decisions to one parent and medical decisions to the other parent. Quite possibly the most important decision making category is education because the selection of a school may create a geographical barrier to one parent’s parenting time such that an extended commute to the school from one parent’s home may be inappropriate.

 

It is important to understand exactly what decision-making means. In Colorado, it means the authority to make major decisions for the minor children such as choice of schools, choice of doctors, elective medical care, etc. It does not include day-to-day decisions such as appropriate attire, discipline, diets, etc. The primary problem most people face with sole decision-making is the decision-maker's use of the authority as a sword to exceed his/her authority such as forced modifications of parenting time. Decisions that involve activities or that may impact the other parent’s parenting time are rarely allocated to one parent. In addition, religion is rarely allocated to one parent because parents have the constitutional right to expose the children to his/her own religion. However, indoctrination such as communion or baptism are major decisions that may be allocated to one or both parties, especially if there is a prior agreement to raise the children in a particular religion.

Practice Areas

“Other than to encourage co-parenting, the Court often prefers joint decision-making…”

Other than to encourage co-parenting, the Court often prefers joint decision-making because of the high burden of modifying decision-making from sole to joint. A parent requesting an allocation of decision-making authority that previously had none, must in most cases prove that the parent with said authority has made a decision that has caused physical or emotional harm to a child. This is the so-called “endangerment standard” and amongst the highest possible standards in any domestic relations case. Alternatively, modifying from joint to sole decision-making implicates the much lower standard, best interests of the minor child.

Consistent with the Court’s preference for joint decision-making, the Court may impose a number of conditions in a parental responsibilities matter to facilitate decision-making. Far and away the most common condition is an advanced parenting class, which may last up to 12 weeks and may require the parents to attend together. Another common condition is the use of an online communication tool such as Talking Parents or Our Family Wizard. Such websites track and record all communications and access and are often used as exhibits in contested hearings. Less commons are co-parenting coaches or therapy. In high conflict cases, the Court may on its own motion appoint a parent coordinator. These professionals may be attorneys, licensed social workers or similarly educated and experienced individuals who will attempt to help parents make decisions and interpret/enforce the Court’s orders. However, parenting coordinators do not have any authority to make binding decisions on their own. This is not unlike a mediator who simply tries to help parents negotiate and resolve disputes without engaging the Court.

 

The Court may also appoint a decision-maker but only if the parties agree on said appointment. While decision-makers will attempt to help parents resolve disputes, they have binding authority to make final decisions when parties cannot agree, unlike parenting coordinators. They are not generally permitted to modify the Court’s orders absent further agreement. Instead, they are generally authorized to interpret and enforce the Court’s orders. Probably the biggest reason the parties may agree to engage a decision-maker is to avoid an allocation of sole decision-making. In any event, the appointment of a parenting coordinator or decision-maker is generally limited to two years, unless the parties agree otherwise. 

 

There are no longer such things as “full custody” or “joint custody.” Nonetheless, decision-making implicates a parent’s input and influence in his/her children’s lives and losing such input and influence can be very demoralizing and difficult to accept. Therefore, the issue cannot be taken lightly and often is more contested than parenting time. Accordingly, parents rarely agree on sole decision-making. An experienced practitioner will help mitigate and avoid obstacles that lead to sole decision-making. Contact us for such experience. 
 

Major Factors in Deciding Child Custody

 

Experienced Denver custody law attorneys can help you to prepare for the most difficult part of any separation or divorce situation: determining child custody.  First, you need to understand the terminology.

When Denver custody lawyers talk about allocation of parental responsibilities, they’re referring to what most people recognize as child custody.  This can further be broken down into parenting time, or physical custody, and decision-making responsibilities, or legal custody.  This is the terminology used by Colorado courts, so it’s important to know it so you understand exactly what’s under discussion.

When it comes to making determinations about child custody, the court will take several factors into consideration, including:

  • The child’s wishes (if the child is determined to be old/mature enough)

  • The parents’ wishes

  • The child’s relationships with parents and other family members

  • The child’s well-being in terms of home, education, and community

  • Proximity of parental homes (same city vs. different cities, states, etc.)

  • Physical and mental health of parents and the child

  • The ability of each parent to encourage a relationship between the child and the other parent

  • The ability of parents to put the child’s needs ahead of their own

  • History of relationships between each parent and the child (including abuse)

When acting in the best interests of children, Colorado courts generally try to encourage shared parental responsibilities so that children can continue to enjoy relationships with both parents as equally as possible.  While equal parenting time isn’t always feasible, parents are often assigned shared decision-making responsibilities, even if one parent is granted primary physical custody.  That said, the outcomes vary by case, and your custody attorney can help you prepare for the most likely outcome in your case.

 

Determining if a Parent is Unfit

 

In the state of Colorado, it’s rare for one parent to receive sole physical and/or legal custody.  For this to occur, the other parent must meet specific criteria in order to be deemed unfit.  Such instances could include cases of:

  • Alcohol/drug abuse

  • Child abuse (physical, sexual, or severe emotional abuse)

  • Child is observed to have bodily injuries after parenting time

  • Child neglect

  • Domestic violence against one parent (proven by a preponderance of evidence) witnessed by the child

  • History of mental illness or emotional sickness

 

Colorado courts are tasked with acting in the best interests of children, so although it isn’t common for a parent to be found unfit, it can happen when criteria are met.  If you believe your child’s other parent is unfit, it’s imperative that you work with qualified Denver custody law lawyers when seeking sole custody.

 

Parenting Time vs. Decision-Making Authority

 

In Colorado, parenting time equates to physical custody of children, while decision-making authority equates to legal custody.  Combined, these elements make up the allocation of parental responsibilities.  It’s important to understand that these responsibilities are not always awarded equally, although Colorado courts favor shared parental responsibilities whenever feasible.

 

Typically, parents are awarded equal decision-making authority, even if parenting time isn’t equal.  This means they have equal say in major decisions concerning the child’s health, well-being, education, religious instruction, and upbringing in general.  If feasible, courts typically prefer parenting time to be split 50/50, but this will vary from case to case, and often revolves around factors like parent schedules and proximity of households.

 

Are Children Required to Appear in Court for a Custody Hearing?

 

In Colorado, children are rarely required to appear in court during a custody hearing.  In fact, courts discourage the involvement of children.  If parents want a child to appear, they must be granted permission by the court in advance.

 

In cases where children are deemed old enough or sufficiently mature enough to have an opinion about which parent they want to live with (typically age 14 or over, although there is no set age at which a judge must consider a child’s wishes in the state of Colorado), the child’s opinion will be obtained during an interview with the judge.  This usually occurs in the privacy of the judge’s chambers, with the court reporter present, and possibly the Denver custody attorneys in the case, but not the parents.  The judge will determine how much weight to give the opinion based on the child’s reasons for wanting to live with one parent over the other.

 

Other Custody/Decision-Making Cases

 

People often assume that child custody cases only occur when parents divorce, but what if parents were never married?  Or what if other family members, like grandparents, want to seek child custody?  In such cases, parents may find themselves involved in similar, but distinct custody cases.

 

- Parenting Responsibilities: Whether non-married parents decide to separate or parents never lived together in the first place, they may wish to establish both physical and legal custody of a shared child or children.  These parents can hire Denver custody law lawyers and go to court to establish the allocation of parenting responsibilities, much like parents involved in a divorce.

 

- Third Party Custody:  If at least one parent is deemed fit, it is almost impossible for a third party, such as a grandparent to gain custody of a child, but that doesn’t stop non-parents from seeking custody.  Like the other 49 states, Colorado recognizes the rights of grandparents to visit and maintain a relationship with their grandchildren.  However, the Supreme Court case Troxel v. Granville, decided in June 2020, set limits on a state’s ability to provide for third-party visitation, insomuch as it cannot limit the rights of parents to raise children as they see fit.

 

Why Denver Custody Law Lawyers are So Important

 

Even in amicable divorce and child custody cases, where parents seem to agree on how parental responsibilities should be split, it’s not a bad idea to consult with Denver custody lawyers, just to make sure your best interests and the best interests of children are advocated for.  In contentious child custody cases, it’s imperative to have suitable Denver custody attorneys on your side.

 

A qualified attorney brings a lot of knowledge and experience to the table, which you’ll not only need for practical purposes like gathering evidence, handling documents and testimony, managing court filings, and so on, but also to prepare you for potential outcomes and advise you on the best course of action.

 

Your custody attorney can guide you through any type of custody case (divorce, third-party, or other) and help you to negotiate a fair outcome that is in your best interest and the best interests of your child or children.  Finally, your attorney is there to offer sound advice when your judgment may be clouded by emotion, helping to ensure the best possible outcome for your custody case.

Custody / Decision Making Services

Attorney Márquez’s extensive experience in high conflict, complex financial, and high asset family law cases affords him the unique ability to help parties find detailed and often creative solutions to solve their cases. He is an empathetic and active listener, but more importantly, he is honest, practical and effective. Less time is spent on rehashing the conflict than on understanding the conflict to formulate options that lead to resolutions.

We look forward to assisting you find ways to resolve your complex cases efficiently and fairly.

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Márquez Law

950 South Cherry Street

Suite 508

Denver, CO 80246

© Márquez Law 2020
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