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. 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. Neither parent begins with a greater right to custody than the other. Judges can consider any factor relevant to custody, with guidance from factors set out in state law, divided generally into these basic categories:
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 that visitation be supervised; in an extreme case, a parent may be denied contact entirely.
The policy favoring frequent contact with both parents is also secondary to the importance of preventing any significant impairment to 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 child care.
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, and 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 they’ll be allowed to start 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.
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 have 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 they are able to cooperate and make decisions jointly; whether the past pattern of the parents’ involvement with the child reflects a mutually supportive environment; whether the parents have the ability to work together to provide a positive and nourishing relationship with the child; and whether any particular allocation of authority will be more likely to facilitate frequent contact between the child and both parents. A court will not ordinarily order joint legal custody in a case where one of the parents has been shown to be abusive or neglectful.
Physical custody is separate from legal custody, and a judge who awards joint legal custody doesn’t have to also 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.