When divorcing parents can't agree on a parenting plan and instead come into a Colorado court for a decision on parenting arrangements, judges base their decisions on the best interests of the children. (Colo. Rev. Stat. § 14-10-124) Colorado law recognizes that it is generally in a child's best interest to have frequent contact with both parents and to have both parents participate in child-rearing. Contrary to popular belief, neither parent begins the process with a greater right to custody than the other. (Colo. Rev. Stat. § 14-10-124 (3).)
Unlike many other states, Colorado does not define custody as joint or sole custody. Instead, the court uses the term "parental responsibility," which can be primary or joint. Typically, if a parent has less than 90 overnight visits with the child, the court considers the other parent to have primary parental responsibility. If you and the other parent have an equal amount of overnight visits with the child, the court considers you both to share joint parental responsibility.
Additionally, Colorado child custody laws split custody into two categories: parenting time (physical custody) and decision-making (legal custody.)
Legal custody refers to a parent's authority to make fundamental decisions regarding the child's welfare, including choices regarding education and health. Physical custody refers to the child's physical presence with a parent. A Colorado court may order parents to share decision-making responsibility, order that one parent has sole legal custody, or divide decision-making responsibility and give each parent control over certain aspects of the child's life.
Whether parents share joint legal custody depends on whether:
A court will not ordinarily order joint legal custody in a case where one of the parents is abusive or neglectful.
Physical custody is separate from legal custody, and a judge who awards joint legal custody doesn't always order joint physical custody. The judge may instead find that it's in the child's best interests to have one primary physical home and spend specified periods of time at the other parent's home—sole legal custody with rights of visitation. If the parents are going to have relatively equal parenting time, the court would order joint physical custody.
If you file for custody in Colorado, you're asking the court to determine where your child lives and who gets to voice an opinion on essential matters over your child. The court takes all custody cases seriously, and the law requires judges to evaluate all of the following (explained in detail below) when creating a parenting agreement:
While ensuring frequent contact with both parents is important, it is secondary to the importance of ensuring a child's physical safety. A judge will consider any issues that may affect the child's physical well-being, including evidence that a parent is guilty of domestic violence, child abuse, or child neglect. In some cases, the judge will require supervised parenting time; in an extreme case, the judge may deny contact entirely. (Colo. Rev. Stat. § 14-10-124 (4)(a).)
The policy favoring frequent contact with both parents is also secondary to the importance of preventing any significant impairment in a child's emotional development. In considering a child's emotional and developmental needs, a court will assess the strength of the relationships between the child and each parent, as well as each parent's past pattern of involvement in childcare.
Judges expect parents to put the needs of their children first and will consider the degree to which a parent has committed time to a child and provided the child with emotional support. A court will always give weight to the parents' wishes regarding parenting time. It may also consider the wishes of a child who is old enough and mature enough to state an intelligent and independent preference.
Courts tend to favor arrangements that maintain stability in a child's home life, minimize disruption to school and community activities, and support relationships with people who are important to the child, particularly siblings. A court may also consider the distance between the parent's homes. While this is primarily a practical consideration, long-distance travel or frequent travel between homes may have an impact on the child's school and social activities.
Colorado law places a strong emphasis on each parent's ability and willingness to encourage a positive relationship and ensure frequent contact between the child and the other parent. Colorado courts frequently require divorcing parents to attend parenting classes to learn about the impact of separation and divorce on both adults and children and get some basic instruction in co-parenting skills.
Parents have the opportunity to develop their own parenting arrangements, and if they're not able to, they must attend custody mediation sessions before beginning a contested court procedure. If the parents are still unable to agree after mediation, the judge will consider each parent's arguments and develop a parenting plan. (Colo. Rev. Stat. § 14-10-124 (8).)
If you’re going through a divorce or custody battle in Colorado and you have questions about the process, contact an experienced family law attorney near you.