As part of thinking about child custody, one should consider what exactly are the needs of each child today, what those needs will be in one year and what they will be in five years. One should consider the ability of each parent to meet those needs of each child. One should consider both the positives and negatives of each parent's parenting abilities. Fellows & Quenzer provides its clients with tools to create realistic parenting time schedules to know what is reasonable and most important what is in the best interests of the children. We look at today as well as the long term future in helping our clients determine what position they need to take on custody issues in a divorce case or a custody case. Our goal in the child custody process is to aid our client to obtain a Court Order through settlement or a trial that places the needs of the child first and foremost. We help our clients safeguard their children or grandchildren.
Colorado courts decide custody issues by the standard of "the best interests of the child". This standard is detailed in Colorado Revised Statutes 14-10-124. Exactly what "the best interests of the child" means is an intricate definition. The court considers many factors, which include: 1) the wishes of the parents, 2) the wishes of the child, 3) relationship the child has with each parent, siblings or other significant persons, 4) the child's adjustment to home, school and community, 5) the mental and physical health of all individuals involved, 6) the ability of each parent to encourage a healthy relationship with the other parent, 7) the past pattern of involvement of the parties with the child, 8) the geographic proximity of the parents, 9) if a parent has committed child abuse, 10) if a parent has committed spouse abuse, and 11) the ability of each parent to place the needs of the child ahead of their own needs. 12) And some additional situation specific factors...
There are several key issues to be considered in a Colorado Custody Case, (1) Parenting time schedule, (2) Decision making for the child, (3) Child Support, (4) Professionally Supervised Visits, (5) Moving out of State, (6) Grandparent Rights, (7) Caretaker Rights (8) Protection Orders (9) Modification of Parenting Time, and (10) Award of Attorney Fees.
The Courts in Colorado have a legal term for what most people call custody. The Courts call custody "Allocation of Parental Responsibilities". It is called APR for an abbreviation. In any divorce or custody case, one will hear the term Allocation of Parental Responsibilities again and again. It is really a two part concept. Part one is how to allocate parenting time to each parent and the second part is how to allocate decision-making authority regarding the children. Each part is discussed below.
Colorado Courts are not to favor one sex over the other when deciding on a parenting time schedule. The Courts really do look at what is in the best interests of the children and discount the wishes of each parent. If the parties cannot agree upon a parenting time schedule, and the decision is left up to the Judge, the Court looks to "the best interests standard" as defined by Colorado Revised Statutes 14-10-124. It has been the experience of Fellows & Quenzer that the Courts seem to want to craft an equal 50-50 type of parenting time schedule if possible. We believe that 50-50 is the starting point and then the court will adjust the schedule to give one parent more time than the other when necessary and even only allow one parent supervised visits with the children when required for the safety of the children. In considering why to not have a 50-50 schedule, the age of the child can be a significant consideration. For a young child, one under the age of five sometimes a 50-50 schedule does not work well. An equal schedule can work well for a young child, it just depends on the child and other factors such as how far apart do the parents live and the parents' work schedules. Working at night is a large factor not in the favor of the parent who works at night. Careful planning has to go into proposing a parenting plan for a parent who has to work at night on a consistent basis. For young children a schedule with frequent contact with each parent is preferred. That means that a plan where a two year old spends one week with Dad and the next week with Mom is likely not going to be a plan the Court devises at trial. A plan for a young child usually has a few days with one parent and then a few with the other parent, visits of at least once a week for each parent. A common parenting plan ordered by the Colorado courts for children of all ages is called a "5-2-2-5". It breaks up the parenting time equally over a two week block of time. One parent will typically have each Monday and Tuesday every week and the other parent will have each Wednesday and Thursday every week. The parents will then alternate the weekend from Friday thru Sunday every other week. So with a 5-2-2-5, the Monday parent will have the child two days in week one just Monday and Tuesday and the next week have the child for five days in a row from Friday through Tuesday. The Wednesday parent will have the child five days in a row week one, Wednesday through Sunday and then just two days the next week, Wednesday and Thursday. This seems to be a good schedule for most children as they get to feel at home in each parents house and are not going constantly back and forth between the homes of the parents. A plan where the children alternate every other night at the parents' houses is usually frowned on as that creates a lot of transitions for the children and they never get to settle into either home, feeling like they live out of a suitcase. Everyone's situation is unique and what is best for one divorced family is not necessarily in the best interests of the children of another divorced family. A competent family law attorney is a great resource to help a parent devise a parenting time schedule that works well for the children and one that the Court will look favorably upon.
Once the Court has decided on a permanent order for a parenting time schedule, it can be changed in the future by one party filing a motion to modify parenting time. For court orders to modify an existing parenting time schedule, the standard that must be met is more involved than the best interests standard for an initial decision on parenting time. Colorado Revised Statutes 14-10-129 provides the details on when the Court can make such a change and what evidence must be presented to allow the court to change the parenting time schedule. There is a difference in the standard required when going from one parent have more time than the other parent to a 50-50 schedule versus a modification where the parent with less time than the other changes to become the parent with more time than the other parent. Typically, the change to a 50-50 parenting time schedule is decided using the best interests standard of 14-10-124. When the modification will change the parent with whom the child spends the majority of the time, the standard is higher to justify such a change and one party generally must show evidence that the change is necessary to prevent endangerment to the child's physical health or emotional development. This endangerment standard does not apply to a relocation situation where one parent wants to move the child out of state or move across the state a distance that substantially changes the geographic ties of the child and the other parent. Relocation of a child is specifically addressed below in its own section.
An additional consideration for motions to modify parenting time is that such motions cannot be brought again and again before the court. For a majority of situations, there is a two year wait period before a similar motion can be filed once the first is decided by the Court. In other special circumstances such as where moving the child out of state is an issue or there is a danger to a child, the two year wait period does not apply. Deciding when and if to file a motion to modify parenting time is a decision that should be made with the aid of a competent family law attorney.
Colorado Courts prefer for both parents to share in making major decisions for their children. Major decisions to be made are typically found in the areas of Health, Education and Religion. Parties can agree to include more areas of Major Decisions such as after school activities, sports participation, extracurricular activities, style of haircut, whether to pierce ears, etc... Colorado Revised Statutes 14-10-124 details the concept of allocation of decision-making responsibility. A parent can request sole decision-making authority where they choose what happens and the other parent is not included in the final decision. For sole decision-making authority to be ordered by the Court, the parties have to agree to it or one parent has to be preferable over the other based upon five different factors such as 1) past pattern of involvement in decisions, 2) evidence of parties ability to cooperate and make decisions jointly or evidence of the lack thereof, 3) whether joint decision making will promote more frequent contact between child and parent, 4) whether one parent has committed child abuse or neglect and 5) whether one parent has committed domestic violence, been a perpetrator of spouse abuse. For child abuse, the Court cannot order joint decision-making over the object of the other party. The court is to pick the non-abusive parent to have the sole power of decision-making. For spouse abuse, the Court cannot order joint decision-making over the object of the other party unless it finds the parties can make joint decisions in a safe and non-abusive manner without physical confrontation. Typically for spouse abuse situations, the Court awards sole decision-making authority to the spouse who was the victim of the spouse abuse.
Once the Court has decided on how to allocate decision-making responsibility to one or both parents, it can be changed in the future by one party filing a motion to modify decision-making authority. The standard of evidence required for the court to order a modification is quite high and is not a simple best interests standard. Colorado Revised Statutes 14-10-131 provides the details on when the Court can make such a change and what evidence must be presented to allow the court to change sole decision making from one parent to the other or to change from joint authority to just one parent having sole decision-making authority. The statute lists a few factors that can trigger such a change. In summary the five factors are: 1) parties agree to the change, 2) the child has integrated into the family of one parent with the consent of the other parent and such situation warrants a change, 3) parenting time has been significantly modified by court order, 4) one parent consistently consented to the other party making individual decisions and 5) the change is necessary to prevent endangerment to the child's physical health or emotional development.
In practice, the one area where major decision-making authority often seems to be of great importance is education and who gets to decide where the children go to school. If the children have already started a school, typically the Court wants the children to have some consistency and remain in such school for elementary school, the feeder middle school and feeder high school. For young children who have yet to start Kindergarten, the decision on where they go to school can have a big impact on the parents. Unless both parents continue to live in the same neighborhood or live close enough to have the same neighborhood school, one parent is going to have to drive their child to school when they have parenting time during the week during the school year. If the parents do not live close together and the distance is significant such as more than a twenty minute drive, the school choice may cause the distant parent to lose parenting time due to the logistics. School choice can be a hotly contested issue in the initial court case or a few years later when a child starts school. In a divorce or break up of a couple, where the parties move is an issue to be given thoughtful consideration in regards to where the children go to school, whether the children stay at their same school, change schools or where to actually start Kindergarten.
In Colorado, child support is based upon a mathematical formula as detailed in Colorado Revised Statutes 14-10-115. The typical factors with the most impact on the formula are the number of overnight visits each year for each parent, each parents' gross monthly income, daycare costs and the health insurance cost for each child. The Court can decide to not use the mathematical formula number, but it is not the norm for the court to ignore the formula. The court has to make specific findings that the formula number is unjust and to deviate from the formula number is not a shirk of the responsibility of either parent. There are several sets of appropriate circumstances where a deviation can be appropriate. It is wise to speak with an attorney to see if your unique situation would justify a lower than normal child support amount.
Once established child support can be changed as often as necessary due to changes in the parties' circumstances such as gross income changes, parenting time changes, health insurance cost changes, other children a parent is financially responsible for and daycare cost changes. For the Court to order a change in child support, the new child support amount, created in the formula using the changed values, must be different than the existing child support number by more than 10% either up or down. When a motion for child support is granted by the court the effective date can go back in time to when the motion to modify child support was filed.
Parties cannot agree to not pay each other child support just because they do not want to pay child support. The Court will look at the formula and decide if no child support is appropriate. Even when one parent is unemployed, a child support order will be issued and the court may impose the old income on the unemployed parent for the purpose of calculating child support. One cannot quit their job and take a lower paying job for the purpose of lowering their child support obligation. Typically child support is paid through a wage assignment paid to a State of Colorado sponsored agency know as Family Support Registry (FSR) who will then send the payment to the parent receiving child support. FSR keeps records of the amount paid, when it was paid and when it was paid out. Using FSR to keep track of child support payments is a good idea to avoid future disputes over what amount was paid in the past. It is a relatively free service with a low cost set up fee and no ongoing service fees.
In cases where the parents cannot agree on the allocation of parental responsibilities (custody) whether the dispute is over parenting time, decision-making responsibility for the children or both, a party or the Court can request the Court to appoint a professional to investigate the case to help the court decide what orders to issue regarding custody. Some courts find a professional investigator to be very helpful as such an investigation avoids a great deal of "he said she said" at trial, which is not appreciated by the court.
There are two types of investigations that can be done. One is a very specified, issue limited investigation conducted by a person called a Child and Family Investigator (CFI). This person is usually a family therapist, psychologist or specialized family law attorney who will investigate the specific issues per the court appointment order and make a report to the court on their findings and give the court a recommendation of what the court should do for this family in regards to the specific investigation issues. A CFI is the less expensive investigation of the two options. By Court rule, generally, a CFI can charge no more than $2,000.00 for their services. Usually the fee for a CFI is split between the parties or can be paid by one party entirely. The CFI does not look at every issue of concern of the parents. Their investigations are limited to a few narrowly defined specific topics. It is wise to engage a competent family law attorney if a CFI is possibly going to be appointed in a divorce case or custody case. There is a defined process to pick a CFI for a case. An attorney is very useful in aiding a parent to hopefully have the court select a capable CFI for the unique circumstances of their case. The statute detailing the appointment of a CFI is found in Colorado Revised Statutes 14-10-116.5.
The second type of investigation is called a Parental Evaluation. This is a much more comprehensive investigation and it will review all issues of concern of both parents as well as additional specified topics as detailed in Colorado Revised Statutes 14-10-127. A parental evaluation is most often conducted by a licensed mental health professional. There is no maximum cost allowed as there is for a CFI investigation. A Parental Evaluation can be expensive depending upon the circumstances of the case. It is possible for a party of limited financial means to request a parental evaluation and force the other parent to pay for the evaluation. The evaluator will issue a report to the court and include recommendations to the court as to how to allocate parental responsibilities. If substance abuse and/or mental health issues are a significant concern in a custody case, a Parental Evaluation may be necessary to bring all the nuances of the parties' situation to the attention of the court for the court to craft an appropriate parenting plan. For situations when supervised visits with the children for one parent need to be considered, a parental evaluation is likely necessary or at a minimum a CFI is likely helpful to persuade the court to order supervised visits to protect the children. If a parental evaluation is a possibility in a case, it is prudent to consult with a competent family law attorney. As with a CFI, there is a defined process to pick an Evaluator for a case. An attorney is very useful in aiding a parent to hopefully have the court select a capable Evaluator for the unique circumstances of their case.
Children can be included in a request for a civil protection order. Most people know this type of order as a "Restraining Order". Colorado calls these types of orders "Civil Protection Orders". There are two types of civil protection orders, a temporary civil protection order and a permanent civil protection order. A Colorado Judge can issue a temporary or permanent civil protection order as part of a Custody/Divorce Case or as a separate protection order only case in County Court or Municipal Court. The custody of a child can be addressed by a protection order for a limited time period. Typically, the Court can only issue a custody order to last for a maximum of 120 days before it terminates. The protection order can be made permanent for no contact between the parents forever. It is very unusual for the Court to issue a permanent protection order to keep one parent from contacting their child. Almost always, the part of the civil protection order regarding custody ends after no more than 120 days. It is then expected that a family law court in District Court will issue a new court order that just addresses custody issues through a temporary or permanent order for allocation of parental responsibilities. A custody order coming from a protection order is intended to be replaced by a custody order related to an actual custody case. The State of Colorado does not want to have custody cases permanently decided in the limited confines of a protection order only case. Criminal case protection orders are somewhat different and depend upon the criminal case against a parent.
A parent has the right to move out of the State of Colorado at any time. Moving a Colorado child out of state is not as simple. Colorado has specific rules for relocating a child out of state or to move the child from one city to another city a great distance away. Moving a child from Denver to Pueblo or even from Broomfield to Highlands Ranch is not a simple matter. Such a move likely significantly changes the geographic distance between the child and one parent. In such circumstances, how Colorado Courts view the proposed move depends upon when a parent asks for the move. If the request to move is made in an initial divorce or custody case the court considers whether to allow the move based upon the best interest factors listed in Colorado Revised Statutes 14-10-124. "Initial" meaning that a Court has not previously issued permanent custody orders in the past. If a court has previously issued permanent custody orders, then the request to relocate a child is considered to be a modification of the existing custody order and then the Court must also consider additional factors as listed in Colorado Revised Statutes 14-10-129. Moving a child is called a "relocation" case. The law is complex for relocation cases both for initial custody cases and especially for modification of custody cases. One can successfully move a child out of state or across the state over the objection of the other parent. It is easier to make such a move in the initial custody case than in the modification case. The move can be accomplished in a modification case as well with some advance planning. In cases where relocation is an issue, it is imperative that the party seeking to move or the parent seeking to block the move have competent counsel to help them with their case. At Fellows & Quenzer, we have experience with many relocation cases. We review each client's unique situation and can help a client plan how to successfully move their child or to successfully block the other parent's planned move.
Colorado allows persons who are not the biological parents of a child to legally obtain rights to a child just like that of a parent, even over the objection of a biological parent. These rights can include a role in making decisions for the child as well as visitation time with the child. This right is available to a grandparent, aunt, uncle, cousin and even non-family members who have taken care of a child for a specific period of time or who are currently taking care of the child today.
The situation to effectively become a third parent and have some custody rights to a child is limited to specific sets of fact circumstances and minimum events must have happened. The attorneys of Fellows & Quenzer handle a great number of these types of cases. These situations for the "third parent' are detailed Colorado Revised Statutes 14-10-123. Often this is the statute that Fellows & Quenzer uses to aid grandparents in taking custody of their grandchildren when the actual parents are failing the child. For grandparents who do not meet the requirements of 14-10-123, Colorado also provides separate express rights to grandparents to be involved in the lives of their grandchildren. Colorado has a specific statute for grandparent rights, Colorado Revised Statutes 19-1-117, titled Visitation Rights of Grandparents. This grandparent visitation statute is limited in how much time a Court can really order for visits with grandchildren and does not allow for the grandparent to be involved in making decisions for the child. However, 19-1-117 is very useful for a grandparent who wants to see their grandchildren and the parents are refusing such access. 14-10-123 offers a great deal more involvement and more time for a grandparent with their grandchild. At Fellows & Quenzer, whenever possible we use 14-10-123 for asserting a grandparent's right to access to their grandchildren.
Under 14-10-123, to have the Court hear a case to become an effective "third parent", one of the following sets of circumstances must apply, 1) today the child is not living with either parent and there is some connection of the nonparent to the child, 2) the child is currently living with the nonparent and not living with either parent, 3) the nonparent has had the physical care of the child for a period of six months or more and comes to the Court while currently caring for the child or comes to court within six months of last taking care of the child. For circumstance number three, the fact that the child's parent is also living with the nonparent does not matter as long as the nonparent is actually taking care of the child. To be successful in these types of nonparent cases, it is imperative that the third parent consult with competent counsel. For these cases, it is very helpful to have an attorney explain to the Court why the third parent falls under the limited circumstances of 14-10-123 and to follow all the procedural rules to move the case to a permanent order of the court to award custody rights to the third parent. There are numerous hurdles to complete a nonparent custody case, but it can successfully be accomplished and the third parent can do what is needed to protect the child as well as provide an environment where the child will thrive when the biological parents cannot properly take care of their own children.
For visitation only as provided by 19-1-117, a grandparent can ask the court to order reasonable visitation over the objection of the parents. The definition of reasonable visitation really depends upon the past pattern of involvement of the grandparent with the child, what frequency of visitation is in the best interests of the child and who the Judge is for the case. Judges do differ on what they think is reasonable visitation for grandparents. In most cases, depending upon the geographic distance between the grandparent and child, it is reasonable to have a set schedule of visitation for a weekend each month or to have a dinner visit every other week. Each case is unique and what is reasonable visitation will vary and could include a great deal of time consisting of weekly dinner visits as well as every other weekend plus several weeks each summer for vacation trips.
Under 19-1-117, a grandparent can demand to see their grandchildren if a specific set of circumstances exist. In general, the necessary circumstances fall into four categories: 1) the parents of the child were involved or are currently involved in a custody case or divorce case, 2) the child has been placed outside of the parent's home, 3) custody rights to the child have been given to a nonparent, third party, 4) the grandchild's parent who is the child of the grandparent has passed away. It is advisable to have an attorney involved to pursue a grandparent visitation case pursuant to 19-1-117. There are some complexities in the law and the grandparents' rights case will have to be presented in a particular fashion to be successful. A grandparent can typically only request the court to require grandparent visitation once every two years. If a case is unsuccessful, a grandparent will have to wait two years before they can try again.
One can ask the Court for the other side to pay for their attorney fees. How the Courts are to consider awarding attorney fees to one party from the other party is primarily governed by Colorado Revised Statutes 14-10-119. It is a very short statute consisting of two sentences that leaves great discretion to the Judge. Colorado intends the award of attorney fees to level the playing field so that both parties are able to have an attorney represent them in a divorce case or a custody case. The Court looks at the financial resources of each party and if one side has significantly larger resources available to them than the other party, an award of attorney fees can be made on a temporary basis in the beginning of the case as well as on a permanent basis at the end of the case. This is an area where rulings can differ from Judge to Judge under similar fact circumstances. This is a statute that can provide a person with limited financial resources the ability to hire a competent attorney to defend their rights in a case where otherwise such a person would be unable to afford an attorney for their case.