Colorado Child Support and Custody Laws - Residential Custody
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.
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