Most states recognize the concepts of "legal custody," which refers to the right to make important decisions for a child, and "physical custody," which refers to the right to actually spend time with a child. In Colorado, courts refer to these rights and obligations as "decision-making responsibility" and "parenting time," respectively. The court is to make these decisions based on the best interests of the child, as explained below.
This article answers some frequently asked questions regarding custody decisions in Colorado. For all of our articles on Colorado divorce, from property division to child support, see our Colorado Divorce and Family Law page.
Do my children choose where they live after divorce?
No. A child who is mature enough to express a reasoned opinion on the issue will be allowed to do so, and the court will also consider how close the child's relationship is with each parent. Ultimately, though, the judge decides where the child should live.
How does the judge make this decision?
The judge must allocate parenting time according to the child's best interests. Colorado law sets out a list of factors for the judge to consider. Along with the child's preference and the child's relationship with each parent, the court will look at:
- what the parents want
- the child's adjustment to his or her school, community, and home
- the physical and mental health of parents and child (however, the court may not deny parenting time simply because a parent has a disability)
- each parent's ability and willingness to foster a loving relationship between the child and the other parent
- the physical proximity of the parents' residences
- whether each parent's history with the child reflects a system of values, time commitment, and mutual support
- whether either parent has committed child abuse or domestic violence, and
- each parent's ability to put the child's needs ahead of his or her own.
Is the mother more likely to get custody?
By law, the court may not give presume that one parent is better suited because of that parent's sex. Many states have these laws; their purpose is generally to undo the historical presumption that children, especially younger children (known as children of 'tender years") would be better off with their mothers.
Despite this gender-neutral admonition, mothers get custody more often than fathers. The factors courts consider in determining the best interests of the child tend to favor the parent who has spent more time and energy with the child, and take more responsibility for the child's care. Although society is evolving, mothers are still more likely to take on more child-rearing responsibilities than fathers.
Can the parents share parenting time equally?
Yes. Parents can divide parenting time in any way that makes sense for parents and child. This might mean each parent has the child for half the year, or it may mean one parent has the child more often (for example, if that parent lives closer to the child's school).
If parents share custody, does either parent have to pay child support?
It depends on each parent's income and expenses, and the child's expenses. It also depends on the allocation of parenting time.
Can I stop my spouse from seeing the children if I don't get my child support payments?
No, not without a court order. Parenting time and child support payments are two separate issues. If your spouse is not paying support, you can file a contempt action.
Can I stop paying child support if my spouse won't let me see the children?
No. As noted above, these two issues are entirely separate, for legal purposes. If your spouse won't honor your parenting plan, file a contempt action.
If my spouse physically abused me during marriage, will that affect the court's custody decision?
As explained above, the court must consider either parent's domestic violence in determining the best interests of the child. You must convince the court, by a preponderance of the evidence, that the abuse occurred.