Colorado Child Support and Custody Laws - How Do Judges Decide Custody and Parenting
HOW DO JUDGES DECIDE CUSTODY AND PARENTING TIME?
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.
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.
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