Frequently Asked Custody Questions
In our Denver, Colorado metropolitan area practice, there are many custody questions frequently asked of our family law attorneys. Below are a few of the frequently asked custody questions. From time to time, our experienced attorneys will update these with new questions for your information.
CUSTODY IN THE DENVER AREA:
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 will the children reside primarily, and "legal custody", meaning who will have the right to make major decisions for the children. Today, "custody" or "parental responsibility" entaild 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." 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 danger 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.