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.
“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.
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.