If you're splitting with your child's other parent, you'll have to deal with the question of which parent the child will primarily live with, how much time the other parent will have with the child, and who has the right to make important decisions about the child's upbringing. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how Colorado law deals with these issues.
There are two aspects to child custody: legal custody and physical custody. Colorado law uses the the umbrella term "parental responsibilities" instead of custody, along with the terms "decision-making responsibility" (legal custody) and "parenting time" (essentially a combination of physical custody and visitation). Although the names are different, the concepts are basically the same. So we'll use these terms interchangeably.
Decision-making responsibility concerns parents' rights to make the important decisions in a child's life on issues like education, medical treatment, and religious upbringing. Except in cases when a parent has committed child abuse or neglect (more on that below), Colorado law prefers parents to share decision-making responsibility (Colo. Rev. Stat. § 14-10-124(1) (2023).)
However, even with joint legal custody, the judge might give each parent authority over certain issues, such as giving one of them the right to make final decisions on the child's education, while the other could decide on the child's religious upbringing. Regardless of the legal custody arrangement, either parent may get necessary medical treatment for the child in a medical emergency without violating the existing order. (Colo. Rev. Stat. § 14-10-124(1.5)(b), (6) (2023).)
Parenting time includes both where a child lives and how much time the child spends with each parent. Typically, when one parent has less than 90 overnight visits with the child per year (the "noncustodial parent"), the court considers the other parent (the "custodial parent") as having primary parental responsibility. If both parents have a relatively equal amount of overnight visits with the child, the court views that as sharing joint parental responsibility. Even in that situation, however, one parent may be designated as the custodial parent (for instance, when it's necessary for school enrollment).
As long as parents have any share of parental responsibilities under their custody orders, both of them have the right to information about their child (including school, mental, and dental records)—unless the judge has a good reason to restrict that right. (Colo. Rev. Stat. § 14-10-123.8 (2023).)
You always have the option of agreeing with your child's other parent about how you'll handle custody and visitation. In fact, the vast majority of divorcing parents reach an agreement at some point in the process, to save the expense and stress of a trial.
But in order to have your agreement made part of a court order, you'll need to spell out the details in a parenting plan and submit it to the court. Judges will generally approve these agreements as long as they appear to be in the child's best interests.
Colorado law lists a few things that parenting plans may include:
(Colo. Rev. Stat. § 14-10-124(7)(2023).)
Ordinarily, the more detailed the parenting plan the better. If you want ideas on what else to include, you can probably find suggestions by searching "parenting plans" online. Also, if you meet the criteria for filing for divorce online, the questionnaires for some of the reputable services may walk you through preparing a parenting plan.
If the parents haven't agreed on and submitted a parenting plan, the judge will come up with one, based on what would be in the child's best interests. When doing that, the judge must consider all of the relevant circumstances, including certain factors spelled out in Colorado law.
In decisions about parenting time, those factors include:
In addition to those factors, judges must consider additional factors when deciding how to allocate decision-making responsibilities:
(Colo. Rev. Stat. § 14-10-124(1.5) (2023).)
When Colorado judges are making custody decisions, they may not assume that either parent is better able to serve the child's best interests because of gender. Also, judges may not consider a parent's conduct (such as adultery) if it doesn't affect the parent-child relationship. (Colo. Rev. Stat. § 14-10-124(2), (3) (2023).)
Colorado judges must consider the custody preferences of children, but only if they're mature enough to express a "reasoned and independent" opinion about which parent they want to live with. There's no set age limit. Instead, it's up to the judge to decide based on the circumstances and the reasons children give for their preferences.
Children won't have to testify in open court about their custody preference. Instead, the judge may interview the child in chambers—although those interviews aren't required. (Colo. Rev. Stat. § 14-10-126 (2023); In re Custody of C.J.S., 37 P.3d 479 (Colo. Ct. App. 2001).)
When parents haven't reached an agreement about custody, it's fairly standard for judges to have children interviewed by custody evaluators, who can then inform the court about the children's wishes. Custody evaluators typically are mental health professionals who have met certain legally imposed standards. (Colo. Rev. Stat. § 14-10-127(1)(a)(I)(A) (2023).)
If one parent has claimed that the other has engaged in domestic violence or child abuse or neglect, Colorado law sets out requirements and procedures judges must follow when deciding whether those claims are true and, if so, how to allocate legal and physical custody. Among other things, judges will:
(Colo. Rev. Stat. § 14-10-124(4)(2023).)
Whenever one parent has primary parental responsibility, the judge will normally order parenting time (visitation) for the noncustodial parent. In some situations, Colorado judges might also order visitation time for a child's grandparents or great-grandparents.
If spending time with a parent would endanger the child's physical or emotional health, the judge may deny parenting time or set conditions on visitation, such as:
(Colo. Rev. Stat. § 14-10-124(1.5)(a), (4)(e) (2023).)
Ordinarily, children don't have the legal right to refuse to visit with a parent until they're legally considered an adult (18 or older in Colorado) or otherwise are legally emancipated. So if a child is refusing visitation, the custodial parent has the responsibility to get the child to cooperate.
Of course, any parent knows that as children get older it can be difficult to make them do something they absolutely refuse to do. Judges recognize that existing parenting plans might become less appropriate as children age or the parents' circumstances change. If your current parenting plan just isn't working anymore, you might have to request a modification (more on that below).
The evolving needs of parents or children—especially as kids get older—may prompt parents to seek changes to custody or parenting time. As with an original custody order, you and the other parent may agree on a change, but you'll need to submit your written agreement to the court, along with a motion (written legal request) for a modification. Once you've done that, the judge may modify the order according to your agreement as long as it's in the child's best interests.
If you can't agree, however, a judge will have to decide whether a change is warranted. Colorado law has different standards for granting modifications, depending on the nature of the request:
In the latter type of request—when the modification would involve both the child's residence and parenting time—the judge should maintain the current arrangement unless:
Also, it's worth noting that parents usually may not request a substantial modification of parenting time and the child's primary residence within two years of a previous motion that also made those requests (regardless of what the judge decided). The only exceptions are in cases of planned relocations or when a parent claims that the child is currently endangered.
The grounds for modifying decision-making orders in Colorado are similar to those regarding parenting time, including the two-year rule. But there are two additional exceptions to the general rule for keeping the current orders in place:
If your child's other parent has been violating your parenting time schedule or orders, you may file a motion asking the court to intervene. A judge will decide if what you've claimed is true. If it is, the judge may issue any order that promotes the child's best interests, including:
Additionally, if a parent has withheld court-ordered parenting time or has failed to exercise parenting time rights, the judge will order that parent to pay the other parent's legal fees, costs, and expenses. Likewise, if the judge find that the parent on the receiving end of an enforcement action didn't actually violate the custody orders, the parent who filed the motion must pay the wrongfully accused parent's legal fees, costs, and expenses. (Colo. Rev. Stat. § 14-10-129.5 (2023).)
Be aware that custodial parents aren't allowed to withhold parenting time even if the other parent isn't keeping up with child support payments. On the flip side, a noncustodial parent may not withhold child support because parenting time is being denied.
Also, you should know that interference with custody is a Class 5 felony under Colorado's criminal law. (Colo. Rev. Stat. § 18-3-304 (2023).)
Custody and parenting time are obviously very serious issues. Because most lay people are unfamiliar with Colorado's laws and court procedures, having to deal with them can add more anxiety and tension to an already emotionally charged situation. And remember, it's not just the parents who are feeling the strain of a custody battle. The children are impacted as well, often more deeply than some people may realize.
It's always best if you and the other parent can resolve your disagreements without heading to court, either on your own or with the help of mediation. In fact, in any court proceedings involving custody or visitation, it's not unusual for a judge to order the parents to participate in mediation.
But if mediation doesn't work or isn't appropriate (such as in cases of domestic violence), you should consider speaking with a knowledgeable family law attorney who can explain your rights and responsibilities, and the best way to move forward. And most certainly speak with an attorney if a custody emergency arises.