Residential Custody: The Primary Parent

Courts must decide who the “primary care parent” is, or the parent that has the majority of “overnights” with the children. In its infinite wisdom, the Legislature has come up with a rather convoluted phrase in the new parental responsibilities statute. Lawyers and judges now refer to “the parent with whom the children reside the majority of the time”. This decision may have important legal consequences. The courts use overnights as a somewhat crude way to determine who provides more of the children’s care. It is not an entirely accurate way of describing this division, but it is the way the Legislature has chosen to address the issue. Note that which parent makes more money is not an issue in determining the primary care parent. Courts assume that differences in income will be made up by child support. What is important to the courts is which parent actually spends more time with the children, and specifically, more overnights.

Many parents assume there is a gender bias in the courts favoring mothers in issues of allocating parental responsibility. While there is bias in society, perhaps even in the minds of some judges, the law seeks a level playing field when allocating parental responsibilities between parents. Judges do favor consistency in addressing parenting issues, i.e., judges favor continuing an existing division of parental responsibilities, unless there is an apparent need for change. One result is that mothers may be given a larger allocation of parental responsibilities, or may be determined to be the primary care parent, more often than are fathers. This is not usually the result of bias. Rather, many parents divide parenting responsibilities early in their marriages and continue those divisions throughout the marriage. Most likely due to societal pressures and traditional divisions of labor, mothers often tend to assume more parental responsibilities than do fathers. Of course, there are plenty of exceptions to this pattern. The result, however, is that when a divorce arises, a judge, in an attempt to provide consistency for the children, may order a continuation of the pre-divorce practices the couple had assumed. Thus, the issue of who will be the primary care parent may not turn on bias, rather, it will likely turn on consistency.

Which parent is the “primary care parent” can be important in many divorce related issues, such as how easily a parent may be allowed to leave the state with the children, or “removal”. These issues can become fairly complex. To determine how these issues are important in a particular divorce or post-decree dispute, the parties should consult a lawyer for an evaluation and opinion regarding their particular circumstances.

About Rich Harris

Rich Harris “Our philosophy is to limit litigation and protect your children. My passion is to make your Colorado family law matter our priority.” Originally from New York, I have made Colorado my home for over 20 years. I received my B.A. in International Relations from the University of Southern California and my law degree from the Sturm College of Law at the University of Denver. I started Harris Family Law to provide superior support in the practice of divorce and child custody law. My goal is to protect individuals and children with compassionate and informed legal representation. I have been recognized by my peers in the legal community on numerous occasions, and frequently lecture on family law issues. View all posts by Rich Harris →