Frequently Asked Custody Questions 4
As custody lawyers in Denver, the experienced attorneys at Plog & Stein, P.C. deal with a wide array of child issues, on a daily basis. We are well versed in all aspects of custody, including establishing primary residence, visitation, and decision making. Our years of family law experience allow us to assess each case from an individual standpoint in terms of both potential outcomes and realistic strategies for trying to achieve our clients’ objectives. Below are more of the frequently asked custody question we hear from time to time. Our attorneys will occasionally update these questions, with the goal of providing our new insights on the subject.
CUSTODY IN THE DENVER AREA:
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 which 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 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. The experienced custody attorneys at Plog & Stein, P.C. 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 the a 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. The Denver divorce lawyers at Plog & Stein were quite pleased to see this change. 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 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 Child and Family Investigator’s file, which can certainly aid in court preparation.