Colorado Custody, Parenting-Time, and “Parental Responsibility” Lawyer

One of the most difficult aspects of a divorce or separation is usually custody and parenting-time arrangements.  I help my clients understand how Colorado law addresses custody and parenting-time issues, develop with them strategies for seeking their desired goals, and work through negotiation, mediation, and (when needed) trial in order to achieve those goals.

Colorado Law Regarding Custody and Parenting Time

Physical and Legal Custody – Now Called “Parental Responsibilities”

Historically, the term “custody” referred to either “physical custody” or “legal custody.”  In most cases, children will reside with one parent more than the other parent; the parent having more time with their children will be said to have “primary physical custody.”

“Legal custody” did not refer to where the children resided, but instead referred to which parent could make legal decisions concerning the child, such as medical decisions and child-rearing decisions (like what school the child would attend and in what religion they might be raised.)

The concept of “custody” in Colorado has been replaced with the term “parental responsibilities.”  This term encompasses the former physical and legal custody concepts into a concept that defines the rights and responsibilities that each of the parents have with respect to their children.  “Parental responsibilities” contains two sub-categories:  1) “decision-making” (which replaces legal custody); and 2) “parenting-time” (which replaces physical custody).

The concept of having “joint custody” of children, thus, no longer exists.  If both parents have overnight custody of their children, they will be deemed to have “joint parental responsibility.”  A parent will be said to have “primary parental responsibility” if the other parent has less than 90 overnight visitations per year.

Similarly, in the past, if both parents were entitled to make legal decisions for their child, they were said to have joint legal custody.   Today, if both parents are entitled to make such decisions, they will be said to have “joint decision-making responsibility.”  Conversely, if only one parent has such authority, that parent is considered to have “sole decision-making responsibility.”

What is Parenting Time?

In Colorado, the term “parenting time” has replaced the former term “physical custody and “visitation”

Colorado law presumes that it will be in the best interest of children to have quality time with both parents. As a result, the courts have adopted guidelines on parenting time plans that allow each parent to have time with their children.[1]  Indeed, parenting time will only be limited or denied in instances in which the welfare of the children may be at stake.

Seeking Your Custody and Parenting Time Objectives

As a Colorado Springs divorce lawyer, my role is to seek the custody and parenting time objectives of my clients. These matters are resolved in one of two ways: through agreement among the parents, or through a trial and a decision ordered by the court.

Reaching Agreement Between the Parents

In most cases, it will be the more beneficial for parents and children to resolve custody and parenting-time arrangements between themselves, often through mediation.  Reaching a successful resolution often requires the combination of diligent commitment by each of the parents and their respective legal counsel, and seeking creative solutions when seemingly impossible differences arise. One of the reasons it is better to reach an agreement is because of the numerous arraignments that can be customized among the parties.  The court has a very limited ability to do this.  Put simply, mediated agreements are surgical – doing exactly what is needed for the parties, whereas the court is more like a hammer – doing only what it can do with limited tools.  Of course, if a resolution cannot be agreed upon, then it will be a judge (and the hammer) – and not the parents – who will determine the custody and parenting-time arrangements.

Court-Ordered Decisions

Taking a parental responsibilities and parenting-time case to court cannot only be expensive, but it also removes the ultimate decisions for these matters from the parents. While in some situations trial will be necessary, trial usually should not be thought of as the first option.

There are, however, some situations in which trial may be inevitable.  As a former top-ranked litigator in the United States Air Force, I’ve represented clients in numerous trials.  This experience allows me to understand the difficulties which will exist at trial and how to best overcome them.

Please Call Me to Learn How I Can Help You with Your Custody and Parenting Time Issues

Please give me a call –  once I learn about the nature of your matter, we can discuss your possible options for the best way ahead.  I offer a free 30-minute initial consultation, and flat-fees for all my clients so there are no surprises.  I also accept credit card payments.

While most decisions involving parenting and custody are reached by agreement between the parents, in some cases it will be the courts, and not the parents, who make the final decision.  In custody and parenting time negotiations, the factors that would be considered by the courts if a case goes to trial may also impact custody negotiations.

To help understand better these matters, the following addresses frequently-asked questions concerning parenting matters in Colorado.

What Factors do Colorado Courts Consider in Awarding Child Custody?

In child custody cases, the role of the court is to determine what custody arrangements will be in the best interest of the childNOTE – the courts will always focus first and foremost on the best interests of the child; not on which parent may suffer more if they are not given the most parenting time.

Colorado Courts must consider the factors set forth in Section 14-10-124 of the Uniform Dissolution of Marriage Act.[1]  This section requires courts to consider the following factors, as well as any other factors that it finds pertinent:

  • The wishes of the parents;
  • The wishes of the child (if the child is mature and can express reasoned and independent preferences);
  • The interaction between the child and the child’s parents and siblings or others who may affect the child’s best interests (the courts are reluctant to negatively interfere with ongoing relationships between the child and other family members);
  • The child’s adjustment to home, school, and the community (the courts usually will prefer to minimize disruption to a child’s schedule and routine);
  • The mental and physical health of those involved (having mental or physical illnesses alone will not preclude a parent from parenting time rights, except to the extent the welfare of the child may be impacted);
  • The ability of the parties to encourage the sharing of love, affection, and contact (except that the courts will consider abuse, neglect, or witnessing domestic violence in making a decision that may minimize the parenting rights of a parent);
  • Whether the past involvement reflects a system of values, time commitment, and mutual support;
  • The physical proximity of the parties; and
  • The ability of the parties to place the child’s needs above their own.

In advocating for my clients’ parenting-time objectives, I walk them through these requirements because these are the requirements the court will be looking at and asking questions about.

Do Colorado Courts Consider the Wishes of Children in Making Custody Decisions?

Yes, if the children are mature and able to express their independent opinion of custody and parenting time decisions.[2]

Because the court will be concerned, first and foremost, about the welfare of the children, they will want to make sure it is the child’s independent opinion, and not coercion or the manipulation of a parent, when a child testifies about their wishes.  The court will also want to assess the maturity of the child when the child expresses his or her opinion.

Do Colorado Courts Favor Mothers in Custody Decisions?

At one time, courts generally favored mothers when granting primary custody, as the traditional notions were that it was the man’s job to earn the income to support the family, and the woman’s job to care for the nurturing of children.

This no longer the case.   Colorado courts can no longer favor a mother over a father in parenting decisions based solely on gender.

Instead, Colorado courts must consider the factors noted above in making parenting decisions concerning where the children will live.

While there is not a statutory bias in the courts for favoring the mother over the father, in reality women are still more likely than men to be a “stay-at-home” parent when one of the parents does not work outside the household.  While being a stay-at-home parent may offer some advantages in parenting-time decisions based upon the normal routine that a child may be used to, this fact alone will not be determinative.  However, as always, laws are imposed by humans.

Will Adultery Affect Child Custody and Parenting-Time Decisions in Colorado?

Colorado courts have a legal duty to make decisions that are in the best interests of the children.  First and foremost, the courts and legislature make a presumption that children benefit most when they have quality time with both parents.

It is unlikely that courts, therefore, will exclude one parent from having parenting-time simply because that parent was engaged in adultery, or if that parent was otherwise “responsible” for causing the divorce in a way that was not a danger to the child.

There are, however, practical considerations that may impact the factors noted above in considering parenting-time matters.  How will the parent’s ongoing conduct affect the children?  Is the parent engaged in a series of relationships that may tend to de-stabilize the home where the children may live?  Are the people with whom the parent is having relationships dangerous?

Courts will not be concerned about parents moving on to new love interests following a separation, but they will be vitally concerned about how any such relationships will affect the children.

Will Colorado Courts Deny Custody or Parenting-Time?

In extreme circumstances, yes.  However, because of the presumption that the needs of children will be best served by having quality relationships with both parents, the courts will not seek to punish a parent for things such as adultery or causing the breakup of the marriage by denying custody or parenting-time.  There are, however, circumstances in which custody or parenting-time may be limited, subjected to supervision, or (in extreme cases), denied.

Circumstances in which custody and parenting time may be limited or withheld tend to involve matters in which the child’s welfare may be directly endangered.  Such circumstances may involve a parent being a drinking alcoholic, a child abuser, or a drug addict.  Severe mental impairment, including anger and rage issues, may also require non-standard parenting-time requirements.

Even if a parent does not exhibit any of these conditions, if their “significant other” displays these conditions, or if the parent and their significant other are involved in domestic violence, such circumstance may also dictate that non-standard parenting time arrangements be adopted.

Although rare, there are some situations in which custody and parenting time may be completely denied, such as when past sexual abuse has occurred.

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[1] Colorado Revised Statutes Section 14-10-124 (1.5)(a)(ii).

[2] For a helpful resource on parenting time in Colorado, please see https://www.courts.state.co.us/userfiles/file/self_help/co_parenting_time_book2004.pdf.