A judge facing a question about custody (“parental responsibilities”) or parenting time bases his or her decision on what is in the children’s ”best interest “. Although this sounds vague, Colorado statutes directly address what this means based on a detailed study of how divorce affects children.
The statute specifically states, for example, that judges should assume there should be “frequent and continuing contact” between the children and both parents, unless a parent presents a danger of physical or psychological harm to the children. Evidence of such danger might be explicit, such as a conviction for domestic violence, another violent crime, or a crime that specifically involves children. Conviction of alcohol-related driving may also be relevant, particularly if a child was in the car. Evidence of other child endangering activity might be considered, even where there was no conviction, if the court determines the evidence is credible. If one of the parents is determined to be a danger to the children, the other parent will have considerable power in determining both the allocation of parental responsibility and parenting time. The court will allow for joint decision making only where it determines that “the parties are able to make shared decisions about their children without physical confrontation” with the abused parent or child.
When addressing custody or decision-making authority for the children, the judge will also consider (1) how well the parents cooperate in making decisions jointly about their children, (2) whether each parent’s relationship with the children is “positive and nourishing,” and (3) how the division of decision-making responsibility will affect the promotion of frequent and continuing contact with the children.
One factor the court will not consider in determining decision-making responsibility is “conduct of a party that does not affect that party’s relationship to the child.” This issue often arises where a parent has a new relationship to which the other parent objects and the objecting parent does not want the children to witness the new relationship. Generally, the court will not bar the children from witnessing a new relationship unless it is shown to endanger the children or affect a parent’s relationship with the children.
When addressing parenting time, besides the endangerment issue, the court will consider (1) the parents’ individual wishes, (2) the children’s wishes, depending on how mature the children are (note: contrary to common misconception, there is no age in Colorado at which a minor child can determine, on his or her own, whom he or she will live with), (3) the children’s relationship with parents, siblings, or other relevant persons, (4) the children’s adjustment to home, school and community, (5) the mental and physical health of all relevant persons, (6) how well each parent encourages the children’s relationships with the other parent, (7) how far the parent live from each other, and (8) how well each parent places the children’s needs ahead of his or her own.
In addition, the custody statute explicitly states that determinations about decision-making and parenting time for children will not be affected by the parents’ genders. Though custody how decisions can often appear to be gender related, in fact, the primary issue is consistency of parenting. Colorado law is clear that such decisions will not be made based on gender alone.
Of course, while the law may be explicit about the factors in determining decision-making responsibility and parenting time, gathering evidence and presenting it in court creates its own problems, especially because the court seeks to protect children from the dissolution process. To deal with this, the court may appoint a special advocate or legal representative for the children. This person will be an attorney or mental health professional who will interview the children, their parents, and anyone else the parents or children suggest, to make a recommendation to the court about what is in the children’s best interest. This process usually operates to keep the children out of the courtroom, and thus protect them from the trauma of testifying in front of their parents.