Over recent decades, family courts throughout the country have trended away from awarding custody based on traditional notions of the family structure. Instead, courts look to various factors that all revolve around the child’s best interest. While public policy favors the active and consistent involvement of both parents in a child’s life, the health and safety of the child are paramount.
Children’s psychological and emotional adjustment following parental separation or divorce largely hinges on the characteristics of the custodial parent and the degree of parental cooperation. These factors weigh heavily when Colorado courts determine whether a mother or father can secure or lose custody of their child. With so much at stake, those in a custody dispute should consult an experienced custody attorney to learn their rights and responsibilities.
Child Custody Laws in Colorado
Colorado courts refer to the allocation of parental responsibilities as an umbrella term covering various parental rights, such as child custody, visitation rights, and decision-making authority. As such, Colorado does not use the terms joint or sole custody. Further, the state maintains two custody categories: parenting time (physical custody) and decision-making (legal custody).
Generally, decision-making and parenting time have nothing to do with each other. Parents can have equal decision-making rights, while one parent exercises majority time. The term “joint parental responsibilities” usually means joint decision-making.
Contrary to a common misconception, neither parent begins the child custody process with a greater right to custody than the other parent. For example, in Colorado, there is no statutory presumption that a mother is better suited to have primary physical or legal custody of a child.
The “Best Interests of Child” Standard
Under Colorado Revised Statutes § 14-10-124, judges must act in the best interests of the child. While this standard is the hallmark of many child protection laws, it is a term of art, and there is no precise definition. However, in making custody determinations, the court will look at factors such as the following:
- Child’s wishes,
- Parental opinions,
- Child’s relationship with parents and siblings,
- Child’s adjustment,
- The physical and mental health of the child and parent,
- Each parent’s ability to foster a loving and stable home environment, and
- The ability of each parent to place the child’s needs ahead of their own.
Fundamentally, the standard prioritizes a child’s safety, well-being, and permanency.
When Can a Mother Lose Primary Physical Custody of Her Child in Colorado?
Studies indicate that after a divorce or separation, children’s ability to adjust is significantly influenced by the characteristics of their custodial parents. While Colorado courts understand that parental love from both parents helps children develop, the influence of an unfit parent may not be in the child’s best interest.
Some factors that may lead a court to deem a parent “unfit” include the following:
- Child neglect,
- Excessive drug or alcohol misuse,
- Parent’s criminal history involving domestic violence,
- Physical abuse and injury to the child, and
- Psychological illness renders the parent unable to care for their child.
Not every one of these behaviors will lead the court to deem a parent unfit. However, a court can use these factors when making decisions regarding visitation and residential custody.
Courts will look for concerns about a child’s physical or emotional safety when making custody or parental responsibility decisions. For example, a mother may lose primary residential custody if the other parent’s home is a better or safer environment for the child. However, if the court finds that a mother is unfit, it may award the other parent full physical and legal custody. In these cases, the unfit parent may still secure limited or supervised visitation with their child.
Proving a Parent Is Unfit
A parent’s psychological adjustment, substance use, propensity for abuse, and criminal history can significantly impact their child’s overall development. Therefore, in some cases, a parent might need to prove that their child’s other parent is unfit. Some steps a parent can take to establish that their child’s other parent is unfit include the following:
- Gather relevant documentation such as medical records, drug screens, and criminal history records;
- Work with an attorney to create a statement that details specific incidents that threatened the health and safety of the child;
- Seek witness testimony from those who might have observed the other parent’s conduct; and
- Provide reports from professionals, such as counselors, physicians, and psychologists, who can serve as expert witnesses to substantiate a claim of parental unfitness.
In most cases, courts will order a psychological evaluation of the other parent and may seek testimony from other caregivers before declaring a parent to be unfit. To be clear, a parent does not have to be deemed “unfit” for the other parent to be awarded primary residential custody.
Regaining Custody in Colorado
In Colorado, parental unfitness does not terminate that person’s parental rights. A parent can take steps to prove that they can provide their child with safe and loving care. Some ways a parent can redeem their status and parental responsibilities include:
- Attending court hearings,
- Attending parenting classes,
- Complying with court orders and mental health services,
- Making concerted efforts to secure and sustain employment, and
- Receiving treatment for any substance abuse issues.
Parents seeking to regain custody should work with an attorney to ensure they take all of the necessary steps to fully reunite with their child.
Can a Mother Lose Custody?
The short answer is yes; a court can grant primary custody of a child to someone other than the child’s mother. However, a court’s custody decision involves many factors, and every case is different. If you believe that divorce is in your future and have concerns about who will be awarded primary custody of your children, reach out to the skilled lawyers at Plog & Stein P.C. Since 1999, we’ve been helping men and women navigate the challenging process of divorce. We understand what it means to be an effective advisor and advocate. To schedule a consultation with a lawyer, give Plog & Stein P.C. a call today. You can also reach us through our secure online contact form.