Whether you're navigating the road to divorce, or are unmarried but ending a relationship, if you have children with your ex partner, you’ll need to have a conversation about where the children will live, who will be responsible for their care, and how visitation will work. Often, determining who will be the child’s primary caretaker and deciding on an acceptable visitation schedule can take an emotional toll on each parent. But, if you understand how custody and visitation work in your state, you might be able to avoid some of the common hurdles and battles that come with this legal process.
Approximately 20 years ago, lawmakers in Colorado eliminated the term physical and legal custody and renamed it parental responsibilities and decision-making, but the name change doesn’t impact the definition. Parental responsibilities still include where the child will live most of the time (physical custody) and decision-making, which refers to which parent will make important decisions for the child (legal custody).
Though the legal terms may vary, every custody case involves deciding physical and legal custody for the children. Physical custody refers to the parent’s time with the children and includes where the children will live, and which parent will be responsible for the children’s daily needs.
In Colorado, parental responsibilities also provide parenting time, meaning a specific schedule for visitation between the noncustodial parent and children. Judges in Colorado prefer that parents share physical custody of the children (joint parental responsibilities), but it’s not always practical, depending on the specific circumstances and needs of each family.
For example, the court may assign one parent primary parental responsibilities if the parties live far apart from each other, the child’s school or extracurricular schedule makes it impossible to split time, or if only one parent is fit to care for the child’s daily needs. In cases where only one parent has primary physical custody, the child will spend most of the time with the custodial parent and have scheduled visits with the noncustodial parent.
Decision-making, or legal custody, refers to a parent’s right to make decisions relating to their children’s health, education, and general well-being. Like physical custody, judges prefer for parents to share this responsibility, which is not as complicated as sharing physical custody. Common issues that arise with legal custody include where to enroll the children in school, major medical procedures, and even religious upbringing. The key to a successful joint legal custody arrangement is that the parents are willing to calmly discuss the issues, meaning both of you may need to make sacrifices for your child’s best interest. Even parents with the best intentions have disagreements, and if that happens, you’ll need to ask the court to decide for you.
Although it’s rare to see a sole legal custody award, if the court evaluates your family dynamic and finds that you and your ex-partner are incapable of communicating or working together for your children’s best interest, a judge may deny the request for joint legal custody. Courts can also deny joint legal custody in situations where one parent is abusive, neglectful, or absent from the child’s life.
It’s a common misconception that the court holds all the power when it comes to custody decisions. On the contrary, the courts prefer when parents work together to decide what’s best for their family. Both parents can submit a parenting plan to the court, either jointly or individually, that addresses allocation of parental and decision-making responsibilities. If the parents make a joint request, the court will approve it if it’s in the children’s best interests.
Children have a right to be emotionally, mentally, and physically safe when in the care of either parent, so the court has a vested interest in making sure that custody arrangements are in the children’s best interests. If the parents can’t agree, the court will decide custody using a variety of factors, which include:
No. Contrary to popular belief, no magical age will allow a child to decide where to live without help from the court. In addition to the above factors, the court may consider the child’s opinion, but only in limited circumstances. If the child has expressed a desire to live with a specific parent, the court may consider this request, but only if the judge finds that the child is mature enough to express a reasoned opinion without either parent’s involvement.
Stability is essential for any child, so changing custody or parenting time is meant to be difficult. However, life isn’t static, and it’s always changing, which means the current custody and visitation orders may no longer be practical for your family in a few years.
Before a court considers your request for modification, you’ll need to demonstrate that there has been a significant change of circumstances since the entry of the last order. For example, if your spouse moved to a different state, it might not make sense to continue with the week on/week off visitation schedule.
In general, Colorado parents can only request a modification of parenting time or custody once every two years, unless you can prove that the present arrangement poses a threat to the child’s physical health or psychological well-being.