Child Custody: Equal Parenting Time as a Fundamental Right?

By: Jessica A. Bryant

Over the course of roughly the last decade, custody attorneys have seen a gravitational shift in most metro area family law courts towards 50/50, equal parenting time for both parents. This does not mean equal visitation occurs in every case, but it has become more of the norm. This shift clearly indicates that the judiciary has accepted and adopted the notion that equal time with each parent is in a child’s best interest, absent exceptions. As a family law practitioner, I cannot help but ponder how soon the Colorado legislature will codify this custody trend?

In the past two years, two separate bills have been introduced in the Colorado House of Representatives seeking to establish equal parenting time as a fundamental right of parents. The first bill was introduced in 2015 as Senate Bill 15-129. This Bill sought to make significant changes to the current statute governing the allocation of parental responsibilities (C.R.S. 14-10-124). In part, this Bill sought to include the following language in the Colorado statute determining the best interests of the child: “courts should require compelling evidence before diverging from a substantially equal allocation of parental rights and responsibilities.” The Bill went even further though and specific stated that the court “shall enter an order for parenting time that awards substantially equal parenting time to each party unless the court finds, after a hearing, that substantially equal parenting time with one of the parties would endanger the child’s physical health or significantly impair the child’s emotional development.” This is a major change from the current statutory language.

Currently, Denver area family courts allocate parenting time based on the best interests standard, which consists of 9 different factors for the court to weigh (the court does not have to weigh all such factors equally). Some of the main factors that the court tends to weight the most heavily are: the ability of the parents to encourage the sharing of love, affection and contact between the child and the other parent and the ability of each parent to put the child’s needs of ahead of his/her own. In other words, if there is a case where a parent has tried to impede the relationship between the child and the other parent, limited the other parent’s contact (except in the cases of abuse or danger), or discussed too many case related issues with the child, that may lead to that parent having less parenting time. Under the proposed house bill however, unless the court finds that a parent is placing the child is physical or emotional danger, the court must order a fifty-fifty parenting time schedule. The physical/emotional endangerment standard is a standard the court currently follows when considering whether to restrict a party’s parenting time. Based on past experience arguing this standard, it is extremely difficult to prove emotional endangerment- such often is only found in extreme cases of alienation with the support of a therapist, psychologist or other similar expert. Thus, if such a bill were to be passed, it may be very difficult to prove the endangerment required to deviate from the fifty-fifty standard.

This Bill, however, was postponed indefinitely by the House in April 2015. However, another Bill, with similar intentions, was proposed to the House again in March of this year (House Bill 16-1110). This Bill, in contrast to the prior Bill, sought to add an entirely new statute called the Parent’s Bill of Rights instead of changing the current statutory language governing the allocation of parental responsibilities. Unlike the 2015 Bill, this new Bill did not specifically mandate equal parenting time. However, the Bill did propose language stating that the government (including courts) may not infringe upon a parent’s fundamental rights without a compelling interest. This Bill was proposed by the National Parent Organization seeking to treat equal custody as every parent’s fundamental right. This Bill was also postponed indefinitely by the House. Therefore, based on the history of these two Bills, it seems like the Colorado House is hesitant to pass a Bill mandating equal parenting time.

Often, though, the courts in Colorado already view fifty-fifty parenting time as being in the child’s best interests, unless the child is very young or there are safety concerns. When presenting your custody case to the court, it is advisable to do so through the assistance of an experienced Denver child custody attorney who has experience with the current statute, is familiar with all of the best interest factors and the best way to present such, and related evidence, in the pursuit of getting you the parenting time schedule you are requesting.