Child Custody Frequently Asked Questions: Initial Determinations
Main Custody FAQs
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.