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Child Custody FAQs

Child Custody FAQ

Child custody is one of the most complex issues in any divorce case.
If you’re a parent with child custody questions, the following FAQs should help answer some of the main ones.

Bear in mind that the terminology we use here in Colorado varies from the terminology used in other states.
For instance, child custody is termed “allocation of parental responsibilities” in the Colorado courts. Legal custody is “decision-making responsibility” and physical custody is called “parenting time”.

Frequently Asked Questions About Child Custody

How do child custody cases work in Colorado?

Child custody determines practical matters like living arrangements, as well as the moral guidance, upbringing, and decision-making responsibilities for a child. 

The system here separates the issues of where children live (i.e. with each parent for certain days, times, holidays) versus how major decisions are made for the children.

These issues are decided either by you and your spouse or by the Colorado courts.  Statutes state that judges should award “frequent and continuing contact” between the children and both parents unless the danger of physical or psychological harm to the child is present.  The courts also prefer that both parents spend approximately equal time with the children, unless circumstances warrant a different arrangement. 

If you are fortunate enough to have an amicable separation with your partner, a divorce lawyer can help you draw up a parenting plan that will be enforceable in court.

You and your partner must agree on all parental responsibilities in the best interests of the children to complete a full parenting plan and the Courts will then adopt your plan upon finding those agreements are in the best interests of the children.

This agreement needs to cover both parenting time (residential arrangements and how the child’s time is divided between you both) and decision-making responsibilities, as well as include child support provisions i.e. a full parenting plan.

If you cannot agree on these matters, the Court may step in to determine the allocation of parental responsibilities that are in the best interests of the children. This will usually result in a hearing and the Court will decide on parenting time and allocation of parental responsibilities.

These decisions will always prioritize the interests of the child (health, safety, education, etc.) over those of the parents.

Will I get sole custody or joint custody?

The preference of the courts in Colorado is for joint custody of children, unless circumstances exist which do not warrant joint decision-making (e.g. domestic violence).

The court generally views a child’s “best interests” as involving both parents in decision-making.  This is decision-making related to major medical, educational, religious, and extracurricular decisions.  Day-to-day decisions are made by the parent that has the children in his/her care. 

A “primary residential parent” may be designated, but this is not a substitute for decision-making, a “primary residential parent” could still have joint decision-making.

Joint decision-making is encouraged, but not always possible or always in the best interests of the children. There are no hard and fast rules. Decisions of the court are always case-specific but every chance will be given for joint custody.

Sole decision-making means one parent has the ability to determine major decisions on behalf of the children on his/her own without the agreement of the other parent.

What are the major factors that the court considers in child custody?

In child custody cases in Colorado, the court will consider several key factors to determine the best interests of the child.

Some of these factors include:

  • The child’s wishes (if the child is old enough and sufficiently mature to express his/her opinion);
  • The parents’ wishes;
  • The child’s needs regarding education, health, social needs, etc.;
  • The physical proximity between the parties (i.e. how close do you and your ex live to each other);
  • The child’s relationship with you, your ex-spouse, and other family members;
  • The mental and physical health of each person involved in the upbringing on the child;
  • Whether there is any history of domestic abuse in the home;
  • Each parent’s ability to support the child’s relationship with the other party;

Note that the gender of the parents is NOT a factor that the courts consider when determining parenting responsibilities. 

Will my child need to appear in court?

No. Children are nearly always discouraged from being involved in court proceedings in Colorado and most of the time they are forbidden in a COurt proceeding unless permission is specifically granted.

Is child support determined at the same time as child custody?

Child support is treated as a separate issue to child custody, but it is a part of the parenting plan and one of the things the COurt will determine.

Like child custody, child support arrangements can be decided between the parties and memorialized in a parenting plan.

Calculators are available to help you work these out, although it is best to use the assistance of a divorce lawyer as there are several things to consider.

When the parties cannot agree, a judge will decide on child support, taking into account factors such as:

  • How many overnights each party spends with the children
  • The gross monthly income of both parents
  • How many children do the parties share and if either party has other children from another relationship
  • The various expenses incurred in the upbringing of the child (e.g. childcare and the child’s portion of health insurance).

Can child custody orders be modified in Colorado?

In Colorado, there is no set age limit on when a child can decide which parent to live with. However, once the child is considered mature enough to decide, he or she will be allowed to express a preference and this will be taken into account by an expert in certain situations, but the children do not get to “choose.”

Custody orders take effect immediately unless they are appealed and you are expected to meet your obligations under these orders. 

For instance, you cannot simply stop paying child support if your spouse refuses to let you see the children. Wage garnishment and driver’s license suspension may result if you do this.

Circumstances can change during the child’s upbringing and modifications of child custody orders are sometimes necessary.

In order for a substantial modification to be made to an existing order, it must be demonstrated to the court that there has been a substantive change in circumstances that affect the safety or health of the child.

If you and ex agree on the modification, you file a Stipulation to Modify Decision-Making Responsibility.

If you and your ex do not agree on the exact wording or details of the arrangement, you will need to file a Motion to Modify Decision-Making Responsibility with the courts.

It is best to consult with a qualified lawyer in either case.

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