Frequently Asked Custody Questions

With more than 50 years of collective experience to our name, we at Plog & Stein, P.C. have encountered all kinds of child custody matters. Our team of Denver divorce lawyers has answered some of the frequently asked questions asked by our clients below. From time to time, our experienced attorneys will update these with new questions for your information.

Unsure of your rights? Learn more below.

  • What is custody?

    In Colorado, the term "custody" is no longer used in statute. However it is still the term used by most people. Starting in 1999, the term "custody" was replaced with the term "parental responsibility." Custody used to be divided into two facets, "physical custody", meaning with whom the children will reside primarily, and "legal custody", meaning who will have the right to make major decisions for the children. Today, "custody" or "parental responsibility" entail 3 areas: Who the children will live with, who has the right to make major decisions for them, and what will visitation ("parenting time") be for the non-custodial parent. Presently, though residential custody is still a commonly fought over issue, in most instances, the parties share joint parental responsibility as to the making of major decisions for the children, or what used to be termed "legal custody." Custody and visitation orders stop when the child turns 18 years of age.

  • How is custody decided?

    Custody is determined by the parties in most instances, meaning people generally come to agreements on the issue. This includes visitation. However, if the parties do not agree as to residence and visitation, the decision will ultimately be made by the judge. Courts are generally looking at 11 factors set forth in C.R.S. 14-10-124 in terms of deciding residential custody and visitation. The court must make decisions it finds to be in the child's "best interest." In many contested custody cases, the court will appoint what is called a Child and Family Investigator (CFI). The CFI is a neutral third person, generally a mental health professional or attorney with specific training, who talks to and observes you and the children. They may also talk to other relevant witnesses. The CFI will ultimately issue a report to the court. It is our experience that roughly 90+ percent of the time the court will follow the CFI's recommendations. It is also our experience that most of the time, a CFI report will lead to settlement. The best situation is for you and the other party to come to an agreement as to custody issues. It is better to dictate your own fate and make decisions for your children that you can live with, rather than letting a stranger (the judge) decide. Of course, sometimes you are forced to fight when faced with unreasonable or ridiculous demands from the other party.

  • If I have custody, do I get to decide where the kids go to school?

    In Colorado, parties in a divorce or custody case generally have joint parental responsibility as to the making of major decisions for the children. Where kids go to school is a major decision. Despite the joint decision-making, courts generally follow the rule of thumb that the kids will go to the neighborhood school or school district of the parent with primary residential custody. This logic flows from a case called Griffin v. Griffin, 699 P.2d 407. This does not mean that the residential custodian has the right to dictate that the kids go to school in some other school district or to obligate the non-custodial parent to pay for private school.

  • Can I seek custody of my niece and nephew?

    The answer to this question depends on various facts. The right to seek custody of a child as a non-parent depends. The child must not be in the care of either parent. This does not mean that the baby sitter or the school teacher can seek custody of a child because he or she is not in the parents' care. The standard, as per Colorado case law, is that the parent, or parents, have voluntarily relinquished physical care and their parental responsibility to a non-parent. In such an instance, the non-parent can seek custody. Additionally, if the non-parent had physical care of the child for 6 months or more and less than 6 months has passed since the parents resume physical care of the child, the non-parent can file. The court will also need to assess whether a bond exists such that the child views the non-parent as a "psychological parent." In many instances, people do not meet the criteria set forth above to seek custody. In true dangerous situations, our attorneys will suggest calling social services, which may take steps to protect the child and/or open up a case in which custody might be sought.

  • Can I get 50/50 custody?

    The answer to this question is generally "maybe." People, generally men, often call our attorneys indicating that they want 50/50 custody. By this, they mean an equal visitation or "parenting time" schedule. Over the last several years, prevailing schools of thought in the family law judiciary and psychological field related to divorce or custody have largely given way to the notion that more time with dads is good and "why not 50/50?" This does not mean 50/50 is necessarily the norm or that it is ordered or agreed to in all cases. However, in instances in which there is a non-substance abusing, non-violent, level-headed, involved father with even a whiff of a track record of being involved with school, activities, homework, and general parenting, there is a good chance that father can get 50/50 visitation. This good father must also logistically have the ability to be there for the children. Working late nights can affect a father, or mother's, chances of getting 50/50, such as when that parent works 4 nights per week. Courts generally want to see a child with a parent, as opposed to sitter or third person, at bed time and overnight.

  • I have custody of my kids. Can I move out of state with them?

    Relocation of children outside the Denver metropolitan area is one of the issues our firm handles for our domestic relations clients. When a party has primary residential custody, or even sole decision-making, he or she does not have the legal right to relocate the children out of state, or in a manner that geographically impacts visitation in a significant manner, without written permission from the other party or an order of the court. In reality, we believe that relocation is the most difficult battle to win. As with other aspects of custody cases, a court must make the decision as to whether to authorize relocation of the children based on the “best interest standard.” C.R.S. 14-10-129, the statutory section dealing with modifications of visitation, sets forth the criteria a court will look at when assessing a request to relocate. In instances in which there are two good parents and significant visitation for the non-custodial parent, getting permission to relocate is highly unlikely.

    In essence, the party wishing to move with the children must have a very good reason, such as a new job making much greater income, or perhaps the other parent is not following his child support or alimony obligation, or maybe that parent has not been exercising his or her visitation for quite some time. Each case is different and unique, but a court will be looking for a significantly important reason for the move, whether reasonable visitation can be implemented for the party left behind, and whether the move is truly in the kids’ best interest. A new spouse or significant other living, or moving, out of state is not a valid reason in the eyes of most court. It is not uncommon for the court to appoint a child and family investigator or parental responsibilities evaluator to investigate all aspects of the case as relate to relocation. We can help you assess your potential relocation case, whether bringing it or fighting against it.

  • What’s a Child and Family Investigator?

    A Child and Family Investigator (CFI) is a neutral third person appointed, pursuant to statutory section C.R.S. 14-10-116.5, to investigate aspects of a custody case, or the child aspects of a Denver divorce case, and to make recommendations to the court. CFI’s can be appointed at the request of either party or by the court, should it believe a CFI is needed. Most CFI’s are either mental health professionals or attorneys. All should have special training regarding the investigation of a custody case and are bound by various rules. A CFI can investigate any, or all, aspects of a custody case, including residential custody, visitation, and legal decision-making (parental responsibility). After an investigation, which generally takes two to three months, the CFI will issue a written report. The CFI process and final report can be the greatest factor in the outcome of any custody case. Our Denver child custody lawyers generally say that a court is “90+ percent” likely to follow the recommendations contained in the CFI report. As such, our attorneys strive to make sure each client in a case involving a CFI, whether an initial case or a custody modification, is fully informed regarding the process and the right things to say and do when dealing with the CFI. Cases can be won or lost based on the impression a party makes on the CFI. The process will include the CFI meeting not only with the parents, but also talking to the children.

    Prior to April 2011, most CFI’s required between $2,000 to $4,000 to start a case. The court ultimately has the decision as to how fees will be paid, and sometimes orders the initial cost split proportionate to the parties’ incomes or just one party to pay. The court can also appoint CFI’s for indigent people at the expense of the state. Beginning April 2011, the Colorado judiciary set forth new guidelines for CFI’s including a $2,000 cap on their overall fees, barring extreme circumstances, and the removal of their quasi-judicial immunity. As a result, a huge portion of the experienced and known CFI’s quit taking CFI appointments, instead choosing to do more comprehensive, and more expensive, parental responsibilities evaluations pursuant to C.R.S. 14-10-127. We can help you understand all aspects of your custody case and assess whether you need a CFI.

  • My ex isn’t following court orders regarding visitation. What should I do?

    You shouldn’t start withholding your child support. You generally shouldn’t send the police over to his or her house to enforce the visitation orders. You could file a contempt of court action in your custody or divorce case. We generally recommend the filing of a “motion to enforce parenting time” pursuant to C.R.S. 14-10-129.5. A motion to enforce parenting time is supposed to take priority on the court’s docket, meaning it should be dealt with expeditiously. In addition to such a motion potentially getting you make-up parenting time, the court can also order attorney fees, modifications of the visitation, and various other remedies that might come with a contempt of court action. The court can also require the custodial parent to post a financial bond with the court, which will be forfeited if orders regarding visitation are further violated. No children should be wrongfully withheld from their parents. Court orders should be followed. If they are not, our attorneys can thoroughly advise you of your rights and all aspects of enforcing visitation orders.

  • My ex-husband took my child to a counselor without my permission. What can I do?

    The first step in answering this question is to determine whether there is sole or joint legal custody (more properly termed "parental responsibility") regarding the making of major decisions. If a party has sole decision-making, and presuming there is no written duty to confer, then taking the child to a unilaterally selected counselor would not be a violation of orders. If there is joint legal custody, there would be a duty to confer and to agree. Most Denver area family law judges would find the selection of a counselor and the child attending counseling to be a major decision. In such a situation, the unilateral selection of, and taking the child to, a counselor would be a clear violation of the tenets of joint decision-making. In such an instance, the most appropriate remedy would be to seek both remedial and punitive sanctions in a contempt of court motion filed pursuant to Colorado Rules of Civil Procedure, Rule 107. Of course, the least costly or litigious step would be to first ask the other party to stop the counseling, or to jointly select a counselor. If they will not, then proceeding with a contempt of court motion would be the appropriate action. Should the court find the other parent in contempt, it can enter remedial orders, including an order that counseling ceases, plus attorney fees. The court can also impose sanctions which can include jail time, a fine, or the posting of a monetary bond, which would be forfeited should a similar violation occur. Courts take violations of parental responsibility, or custody, orders seriously, as do we.

  • I'm in the middle of a custody battle, and Social Services just opened up a dependency and neglect case against my wife. What happens now?

    Dependency and neglect cases are cases started by a county or state social service agency based upon allegations of abuse or neglect of a child. D & N (common term used by Colorado attorneys) cases are initiated pursuant to C.R.S. Title 19 and are deemed "juvenile", as opposed to "domestic relations" in nature. Pursuant to statute, a juvenile case takes precedence over, or supersedes a domestic relations case. As such, all proceedings in the custody case would stop until such time as the D & N was resolved. The judge in the juvenile case has full authority to enter temporary and permanent orders regarding custody, visitation, decision-making, etc. Once the D & N is concluded, that court can then transfer issues back into the custody case. One should keep in mind that a permanent order is a permanent order. Therefore, the standards for modifying such will be the same, regardless of whether it is entered in a D & N or custody case. Social Services cases should be taken very seriously, as the state has a lot of power behind it regarding judicial custody outcomes and placement of children.

  • I am in the military and being deployed overseas. What happens with my parenting time and joint legal custody?

    The Colorado legislature has deemed the deployment of a person in the military to be a legitimate endeavor warranting special treatment under statute. As such, pursuant to C.R.S. 14-10-131.3, any changes to parenting time or decision-making are going to be viewed by the court, as per statute, as interim or temporary in nature. A service member going overseas should certainly attempt to get any agreements in place prior to leaving regarding parenting time or decision making. Statute indicates that upon return to Colorado, and the filing of a notice with the court, parenting time and decision-making as per prior orders resumes. Thus, those in the military are afforded the protection of knowing that being deployed overseas will not likely be used against them in future legal proceedings. One should also keep in mind that statutory standards for modifications of legal custody/decision-making would still apply. Fortunately, in this day of internet, cell phones, and Skype, decision-making regarding major issues should not be seriously interrupted from a logistical standpoint due to overseas deployment. We are ready to help Armed Forces members with their custody and visitation matters, before and after deployment.

  • My ex and I have joint legal custody, but he won't return my calls regarding making joint decisions. What do I do?

    With joint legal custody comes the duty to confer on major issues. Unfortunately, once final divorce or custody orders are entered, some parents simply choose to no longer take part in the decision-making process. If the other party truly just ignores requests to confer, at some point you will need to act in a legal fashion to change things. C.R.S. 14-10-131 authorizes modifications of decision-making when one party has acquiesced his or her role to the other. Additionally, some major decisions regarding children need to be made in timely fashion. If you put all communication requests in verifiable written form, such as e-mail, you can prove you at least tried to jointly make a decision. Most Denver area family law courts are not going to punish a person who tries to comply with joint decision-making efforts, but gets no response from the other side. One or two instances of non-communication will not cut it. Furthermore, there is generally not a need for major decisions to be made on a daily basis. Ultimately, after a significant time of non-communication or a significant number of communication attempts being ignored, you will likely be able to prove a pattern of the other party acquiescing his or her decision-making, thereby warranting amodification to your joint legal custody.

  • How often can my ex file a motion to change custody?

    The answer to this question depends upon the content of the existing orders. If one person has the majority of the visitation, or time, with the children, C.R.S. 14-10-129(1.5) indicates that absent a showing of danger, a motion to modify parenting time that also changes the party with whom the children reside a majority of the time, can only be filed after 2 years has passed from entry of the final orders or disposition of the most recent motion to change custody. If the parties already have equal parenting time, there is no set time frame in terms of how someone must wait to try to change the orders as to custody. That being said, most Denver family law courts will ultimately have an issue with someone who files repeated motions. The absolute exception to the 2-year rule is endangerment, whether physical or emotional in nature. When children are in danger, statute and courts understand that action may need to be taken without waiting.

  • What is the difference between a “custody” case and a “paternity” case?

    A custody, or “parental responsibility,” case is filed pursuant to C.R.S. Title 14. A “paternity” case is filed pursuant to C.R.S. Title 19, Article 4. Title 19 is sometimes referred to as the Juvenile Code. Custody and paternity cases are extremely similar, in that custody, visitation, and child support are the primary issues in both. The main difference is that with a paternity case, the paternity of the child has either not been established, or is not fully accepted by both parties. In a paternity case, the first step will be for either both parties to agree to paternity or for genetic (DNA) testing to be done. There are certain advantages for both mothers and fathers in pursuing a paternity case, as opposed to custody. For fathers, questions of paternity may arise based on suspicion, infidelity, or statements of the mother that a child is “not yours.” Thus, the establishment of paternity, or disestablishment, can provide certainty. For mothers, the primary benefit of a paternity action is that C.R.S. Title 19 provides for a potential order of support back to the birth of the child, including birthing costs. This is contrary to a pure Title 14 custody case, in which the other party is on the hook for child support only back to the date of service. There are also differences between the two types of cases related to the applicability of aspects of the rules of civil procedure, particularly Colorado Rules of Civil Procedure Rule 16.2, which governs all procedural aspects of a custody case. Our experienced custody attorneys can help determine which type of case is best for a client’s needs, mapped up with the facts and circumstances of his or her individual case.

  • Can I request genetic testing in a divorce case with children?

    Yes, in certain instances. Pursuant to C.R.S. 14-10-124 (3.5), a party to a Colorado divorce may be able to seek genetic testing as part of the case. Additionally, statute indicates that requesting genetic testing shall not prejudice either party as to the determination of custody and visitation. Paternity is generally presumed for children born during a marriage. With most married couples, both sign off on a birth certificate. Even if paternity is disproved, one can still seek orders regarding visitation and custody, based on theories of being a “psychological parent” to a child. Though we like to think that everyone will be faithful in a marriage, the reality is they are not. Sadly, we have seen instances in which a child is held out as the husband’s, only until the divorce case is filed.

  • My husband is threatening to take the children and move to California. What can I do?

    Should the husband in this instance leave prior to the case being filed, he is technically within his legal rights. However, in most instances, absent permission from the wife, a court will entertain emergency or forthwith requests for relief in terms of ordering that the children be returned to Colorado while the divorce case is pending. In terms of legally preventing the other party from just leaving with the children, one must get a divorce case filed and get the other spouse served. Pursuant to C.R.S. 14-10-107, both parties, once service is effectuated, are prohibited from leaving the state with the children without a court order or permission of the other party while the case is pending. In recent years, the legislature also made a similar injunction applicable to custody cases. Though the husband’s desire to leave Colorado can be stopped initially, he will still have the right to ultimately seek permission from the court to relocate with the children.

  • I disagree with the Child and Family Investigator’s recommendations. What are my options?

    A Child and Family Investigator (CFI) is a neutral third person appointed to a divorce or custody case to make recommendations to the court regarding visitation, residential custody, and decision-making (legal custody). In essence, a CFI is a court appointed expert. In most instances, it is our belief that courts are generally 90+ percent likely to follow a CFI’s recommendations, absent gross ineptitude or misconduct. In any case, it is likely that one side or the other will be unhappy with the CFI’s findings. For that parent, there are generally three options. One can certainly negotiate settlement more or less based on the CFI’s report, knowing that the other party may not want to take the risk or spend the funds required to go to a contested hearing in front of the judge. The second option is to seek a second opinion, or evaluation, from an alternate expert. Specifically, one can seek a parental responsibilities evaluation, formerly known as a “custody evaluation,” pursuant to C.R.S. 14-10-127. Unless a court determines that a request for a PRE is sought solely for purposes of delay, the court must grant the request for an evaluation. A 14-10-127 evaluation is going to be more in-depth than the CFI investigation, but also much more costly.

    Not all people in a Denver area custody battle can afford the roughly $5,000 required to start a PRE. The PRE will certainly provide a potential counter expert opinion to the CFI. Conversely, the evaluator may come up with similar conclusions as the CFI. If one is not able to afford a PRE and not inclined to settle, the third option is to proceed to hearing, with the hope of challenging the conclusions of the CFI. This is certainly the least optimal approach, but often a reality in these economic times. One should remember that there is an entitlement to get the CFI’s file, which can certainly aid in court preparation.

  • How does a court set holiday visitation?

    In most divorce and custody cases with children, it is common for there to be orders in place regarding holiday visitation, whether entered by agreement or the court. As most cases usually settle without a judge handing down a decision, the parties usually jointly arrive at a holiday schedule. The first step is identifying the holidays that are important to each party. The next step is to figure out a fair, balanced rotation that works for all. In most instances, holidays will be alternated on an even/odd year basis, such that if one party has a specific holiday one year, the other will have it the next. Each family is different and holidays of importance can vary. At a minimum, courts will order provisions for Christmas, Thanksgiving, and Mother’s/Father’s Day. Other holidays are generally also added to schedules, including Easter, Memorial/Labor Day, and the 4th of July. Some people will request every holiday and birthday imaginable. Also included in most holiday visitation schedules are breaks from school, such as Winter Break, Spring Break, and Fall Break. Winter Break will usually be divided into halves, which are alternated from year to year. Spring and Fall Breaks are also generally alternated and will include at least one of the attached weekends. In most instances, parties will agree, or the court will order, that holiday visitation supersedes regular and vacation visitation. This means that regardless of who regular parenting time it is, the person allocated the holiday with the children will get it, no matter what. Of course, this means that one person may lose his or her regular parenting time due to the other exercising a holiday. Because this will happen to both parties at various times each year, the courts generally will not enter orders authorizing make-up visitation due to time lost for a holiday. If one party wants holiday orders in place, the court will generally enter a typical holiday schedule over the objection of the other. We are available to answer your questions regarding holiday visitation.

  • What is “primary residential custody”?

    “Primary residential custody” generally refers to the person with whom the children reside a majority of the time. Primary residential custody can generally only be changed via agreement, in instances in which the primary custodian wishes to relocate elsewhere, or if the court finds physical or emotional danger in his or her home or care of the children. Being the primary residential custodian does not confer greater rights to a parent regarding the making of major decisions, but will generally result in the children going to school in that person’s district, even if there is joint decision-making or no agreement on that issue. As equal, or 50/50 visitation in Colorado becomes more common, parties must recognize that neither has the primary residential status as relates to visitation (parenting time). Additionally, statute also indicates the orders entered by the court must designate one party’s home as the child’s legal residence for state and federal legal purposes requiring such a distinction. This generally has no bearing on visitation or the right to jointly make major decisions. If someone says, “I have custody of my kids,” they are generally referring to having primary residential custody, as opposed to legal.

  • What is a normal out-of-state parenting schedule?

    We deal with all aspects of divorce and custody cases related to children. As the economy has become more national and uncertain over the years, it has become more common for people to leave Colorado for either job or other economic reasons. As such, our experienced attorneys have recently seen more cases in which one parent or the other needs to relocate from Colorado, or is already out of state. In these instances, a parenting plan will need to be developed that affords as much time as possible for the non-custodial parent. Of course, courts will set visitation in an age-appropriate fashion, recognizing that younger children may not do as well as older ones when it comes to being away from the custodial parent for extended periods of time. Assuming the children are old enough, a common out-of-state parenting plan would likely include the children being with the non-custodial parent for one week of the Winter Break, alternating Spring Breaks (sometimes each Spring Break), and the vast majority of the Summer. Usually, the custodial parent will get at least a week at the beginning of summer and a week at the end, to get the children ready to return to school. Additionally, it is not uncommon for the schedule to include provisions allowing the non-custodial parent to return to Colorado at least one weekend a month to see the children. In some instances, Thanksgiving break may also be added, as well as long weekends.

    As travel costs for the children are generally going to be split proportionately to the parties’ incomes, as indicated in the Colorado child support statute, C.R.S. 14-10-115, courts will generally only order costs be split for the major blocks of time, not the lesser weekends. In light of the cost of travel, it is not common for the other lesser holidays to be added into an out-of-state schedule, unless the non-custodial parent is willing to travel at his or her own cost for such. Again, each family is different and the above stated schedule may not work for all. Our experienced custody and visitation attorneys can help you with developing your out-of-state parenting schedule.

  • How old does my child have to be to decide where he wants to live?

    As custody lawyers in Denver, this is perhaps one of the most commonly asked questions. People have varying pre-conceived notions regarding when a child’s wishes govern in a custody or modification case. Some people believe the magic age is as early as 12. They are wrong. In reality, there is no statutorily set age at which a child gets to decide where he or she will live, or whether he or she will see the other parent for visitation. That being said, courts and statute recognize that children’s wishes matter and that those wishes should be considered when children reach a suitable age to weigh in on the issue. As a general rule of thumb, we will tell clients that by 15, 16, or 17, most court’s will start to put a much greater weight on a child’s wishes and may consider changing custody or visitation based on such.

    Some judges will let the child’s wishes govern outright at this age, recognizing that you cannot force a 17-year old to be somewhere he or she does not want to be. Other courts may change time, but still force some sort of relationship, or counseling, even if a child is 16 or 17. In conclusion, there is no magical age, but there is an age range in which the child’s wishes may carry greater weight. As part of the equation, a court will also look into the environment into which the child wishes to go. A court is not going to give a 15-year old free range to move into mom or dad’s party house, with lax rules and no concern for grades or development. Our attorneys can help you assess what is going on with your teenager and what legal steps may be worth taking in your Colorado visitation or custody case related to his or her wishes.

  • What is a PC/DM?

    “PC/DM” stands for Parenting Coordinator/Decision Maker. A parenting coordinator is a third person who can be appointed by the court, whether by force or agreement, to assist parties with implementing a parenting plan or to help them with co-parenting issues and mechanisms. Parenting coordinators must have specific training and are appointed pursuant to C.R.S. 14-10-128.1. In essence, a parenting coordinator’s primary function is to assist the parties in developing ways to work together to implement their orders. Like a mediator, a parenting coordinator tries to find mutual points of agreement or resolution. A parenting coordinator has no decision-making authority, cannot change custody orders, and cannot be called to testify in court. Parenting coordinators generally charge a retainer and hourly fee, which the court will usually apportion between the parties. A parenting coordinator’s term of appointment cannot exceed two years, unless agreed to otherwise by the parties.

    A decision maker is a neutral third person, appointed by a court, to make decisions in a Colorado family law case, pursuant to C.R.S. 14-10-128.3. A decision maker can only be appointed by agreement of the parties, and the appointment, as with a parenting coordinator, shall also only run for two years, absent an agreement to extend it. Unlike the parenting coordinator, a decision maker can make legally binding rulings, much like a judge, which can be quite difficult to get overturned or to challenge in court. In most instances in which people agree to a decision maker, they do so with the belief that they can get disagreements resolved or legal matters dealt with more quickly than waiting for a court, which can take months, if not years, in some jurisdictions. An order appointing a decision maker must set forth specifically what the decision maker’s authority is, whether related to visitation, custody, or the making of major decisions.

    A PC/DM is a person appointed with the power to do both coordination and to make decisions. We generally discourage our clients from agreeing to the appointment of a parenting coordinator or a decision maker, unless they are just dead set on proceeding with such. In either instance, the appointed becomes just one more person to pay in an already expensive process. In some extremely high conflict cases, we have found value in the appointment of a parenting coordinator. At the same time, one party can abuse the process to the financial detriment of the other by constantly engaging the coordinator with frivolous concerns. As such, we reserve recommendation for only certain cases. Likewise, we almost never advise our clients to agree to the appointment of a decision maker. Again, a decision maker is granted essentially the same power over you and your children as a judge, yet has much less accountability in terms of being able to be appealed or otherwise. Frankly, the process can become a popularity contest based on alliances and egos. As such, we generally believe it is better to let a competent and accountable judge decide child related issues than a private third person. Each case is different, and in some we might occasionally advise that a decision maker would be appropriate.

  • We got divorced in Colorado, but have both moved to different states. Does our custody case remain in Colorado?

    The answer to this question depends on various factors. Pursuant to Colorado Revised Statutes, Title 14, Article 13, the Uniform Child Custody Jurisdiction and Enforcement Act, if Colorado custody orders were issued, Colorado retains what is called “exclusive continuing jurisdiction,” unless a couple of different factors present themselves. The primary issue giving rise to custody jurisdiction being transferred to another state will generally depend on whether one parent remains in Colorado. If the children and one parent have been gone for 6 months or more, there is an argument that jurisdiction could be changed. However, pursuant to C.R.S. 14-13-202, jurisdiction would remain in Colorado unless the children and both parents are gone. With the above posed question, both parents have moved away from Colorado. As such, it would be proper to transfer jurisdiction to the state in which the children now reside, presuming they have been there for 6 months or more. As jurisdiction under the UCCJEA flows with the children, not the parents, there shouldn’t be a battle over which new state will assume jurisdiction. Though a case may originate here, the law recognizes that people move. It would make no sense in this instance for Colorado to retain jurisdiction when both parents and the children are elsewhere.

  • My wife refuses to let me have my court ordered visitation with the kids. What should I do?

    Court’s take the following of orders regarding visitation seriously. The initial presumption of many people in this situation posed to our experienced Denver custody and visitation attorneys is that contempt of court proceedings should be initiated. Contrary to this common belief, we generally suggest the filing of a motion to enforce parenting time pursuant to C.R.S. 14-10-129.5. With a motion to enforce parenting time, the court can enter orders regarding make-up time. The court can also make modifications to the existing orders to curtail or prevent further violations. Additionally, the court can require the party withholding parenting time to post a cash bond. Further remedies include contempt of court like components, as well an award of attorney fees and costs if it is proven that the other party violated the visitation orders. A significant aspect of a motion to enforce parenting time that makes the option much more appealing than a contempt of court proceeding is that statue indicates a hearing regarding a motion to enforce parenting time should be placed expeditiously on the court’s docket. Conversely, a contempt of court action can take multiple hearings spread out over several months before any relief regarding the denial of visitation occurs.

  • I moved to Colorado 3 months ago. Can I file for custody?

    Generally, the answer to this question would be “no.” Presuming there are no orders from another state and the child is over 6 months of age, a child must be in the state of Colorado for a period of 6 months before a custody action can be filed or the court can retain jurisdiction over custody issues. As with the question posed above, the 6-month time frame stems from the Uniform Child Custody Jurisdiction and Enforcement Act. C.R.S. 14-13-201 indicates that Colorado is the proper jurisdiction for a new custody case to be heard so long as it is the child’s “home state,” meaning the child has been here for 6 months or more. The purpose behind the UCCJEA is to prevent parties from forum shopping in terms of trying to seek out the best state to meet their needs. Another purpose is to set forth clear ground rules among the states so that there are not differing or conflicting orders from different states regarding the same child or children. One exception to the 6-month rule stems from C.R.S. 14-13-204, which indicates that a Colorado court can entertain temporary “emergency” jurisdiction. The exercise of emergency jurisdiction would only apply in certain, true emergency situations in which protection or relief is needed now. Statute indicates that the non-emergency issues would still likely need to be litigated in the proper “home” state. We can help you with questions regarding Colorado child custody and visitation issues, as well as questions regarding interstate custody disputes.

  • As a stepmom, do I have any custody rights?

    In general, the answer to this question would be “no.” However, there are instances in which a step parent may obtain rights to visitation or custody in Colorado. If a widow or widower remarries and the stepparent is part of the child’s such that the child ultimately comes to identify the stepparent as a parent, the law does allow for that person to potentially seek custodial or visitation rights based on the theory of being a “psychological parent.” This can also arise in instances in which the other biological parent is absent, for whatever reason, such that the stepparent assumes a parental role. If there is an existing case between the parent and the child’s other biological parent, it may be necessary to take action in that case. If there is no existing case, the issue of obtaining visitation or custody rights as a step parent would be raised in a divorce case or separate custody case.

  • Can grandparents with visitation rights keep me in Colorado?

    No. Though grandparents are able to seek grandparent visitation in cases involving the custody of a child, or as a new case if their child, one of the parents, is dead, grandparents cannot keep a parent in the state of Colorado should that parent seek to relocate elsewhere. Parents are afforded a fundamental, constitutional right to the care and control of their children. Case law, though allowing grandparent visitation, upholds this right as taking precedence. As such, parents in a grandparent visitation case are free to move. However, modification of the grandparent visitation schedule may need to be sought by either side, preferably prior to then move. With an out-of-state move, the issue of travel costs may also arise.

  • Are the custody provisions in our will binding if we die?

    No. As Denver custody and divorce attorneys, we are often asked questions related to wills or estates. Those types of matters generally fall under the heading of “probate” law. It is not uncommon for people to ask us about whether a provision in their will regarding custody will be binding on a court or others in the event of both parents’ deaths. A domestic relations court is not bound by a provision in a will. At the same time, that provision should certainly be used as evidence. Furthermore, if neither parent is living, an array of family members or other people would have rights to seek custody, properly termed “parental responsibilities,” for the surviving child. In determining custody, a court needs to assess the circumstances at hand at the time of the case as relates to the best interest of the child and cannot be bound by a document set forth potentially well before then.

  • Will the police help me get my kids back?

    From time to time, we see cases in which one parent or the other elects to just not return the children, despite court orders to the contrary. We also get inquiries from people wondering if the police will help them get their kids back from the other parent despite the fact that there is no case filed or no court order. Unless there are court orders regarding Colorado visitation and custody, each parent has an equal right to the children and there is nothing the police will do, absent, perhaps, an imminent and evident danger issue. When there are orders in place, the answer to this question varies from jurisdiction to jurisdiction. A police officer or department in one Denver suburb might be willing to go to the door to talk to the parent in violation of orders to see if they can convince them to hand over the child. In other places, the common response might be “it’s a civil matter.” Again, it truly just depends and we have seen various outcomes throughout the Denver metropolitan area. Fortunately, there remedies that can be sought through the court to get specific orders directing law enforcement to assist in retrieval of the child. This can even include issuance of paperwork, called a warrant, authorizing law enforcement to enter a residence. Our attorneys can assist you in figuring out the most effective and efficient way to get your children back.