Child Custody Frequently Asked Questions: Legal Custody



  1. If I have custody, do I get to decide where the kids go to school?

    The allocation of parental responsibilities (legal custody) between two parents generally entails both allocation of visitation (parenting time) rights and allocation of rights regarding the making of major decisions for a child. When decision-making responsibilities are allocated, the court orders will usually indicate that either the parents share joint decision-making or sole decision-making. The general themes or categories of major decisions a parent, or parents, might need to make are medical, educational, or general welfare in nature.

    Whether a parent gets to decide where kids will go to school will first depend on the orders in place at any given time. If the parties have orders, whether entered in a divorce or child custody case, indicating that one has sole decision-making regarding educational decisions, then that parent can generally decide where kids will go to school. This would include the ability or right to change schools should that parent desire. However, that parent will have some limitations. For example, if the parent allocated sole educational decision-making wishes to enroll the children in a private school, he or she may have issues related to payment of tuition, despite the sole decision-making authority they possess. For example, a parent with sole educational decision-making cannot enroll kids in a $10,000 to $20,000 school and expect the other parent to be responsible for his or her share. Nor can they expect a court to allow their use of authority to so significantly impact the other parent, despite, their sole authority. When speaking of sole decision-making and public schools, the parent vested with the decision-making generally has full authority to make changes as desired.

    If parents have been allocated joint parental responsibilities regarding the making of major decisions, the analysis is completely different. If the parents have gone through the initial child custody or divorce case and joint educational decision-making has been ordered or agreed upon, children who are already in school are generally going to remain in that school, absent a subsequent agreement. Typically, the children would also matriculate up to the next level of schooling within the same district, to the middle school or high school attached to the predecessor, lower-level school, again absent an agreement between the parents.

    However, there are situations in which the parents share joint educational decision-making, but one parent has the children the majority of the time. In those instances, it makes sense for the parents to expressly indicate in their final custody orders that the primary residential parent’s address shall be used for school and school selection purposes. Unfortunately, these types of agreements are not always reached and, as a result, problems can arise down the road if the residential parent chooses to move from the school district, thereby potentially necessitating a change in schools. Absent the designation of residence for school purposes, the technical result of the primary parent moving would be that he or she still has to keep the children enrolled in their old school, unless such is not feasible because neither parent continues to reside in the district. If neither parent continues to reside in the original district, then the children would go the primary parent’s new district. If the parent with less parenting time remains in the original district, but the primary parent has moved and wishes to change the kids’ school, he or she is going to either need to file a motion to modify educational decision making pursuant to C.R.S. 14-10-131 or a motion asking the court to resolve the disputed issue.

    The strict letter of Section 131 indicates that decision-making cannot be modified absent a showing of physical endangerment or significant impairment to a child’s emotional development under the current decision-making orders. This is a tough burden of proof to meet and kids remaining in a certain school is generally not going to rise to the requisite level of proof needed. Without a basis to outright modify the decision-making, parties are left hoping the court is willing to resolve the dispute. Some judges view their authority as not extending to stepping into the role of parents in terms of actually making a decision. There is, however, case law, In re the Marriage of Dauwe, 148 P.3d 282 (Colo. App. 2006), which does indicate that the court can step in to resolve a running decision-making dispute between parents. Of course, the ultimate decision of whether a school change will occur will depend on the judge’s perceptions of the case and evidence.

    Finally, there are situations in which the parents have equal, 50/50, parenting time and both have moved or are moving from the original school/district. In those instances, if they cannot agree to a new school, the court is going to have to make the decision in line with what it perceives to be in the children’s best interest. The family law attorneys at Plog & Stein have decades of combined experience helping divorce and custody clients deal with parental responsibilities and decision-making cases.


  2. My ex and I have joint legal custody, but he won't return my calls regarding making joint decisions. What do I do?

    With joint legal custody comes the duty to confer on major issues. Unfortunately, once final divorce or custody orders are entered, some parents simply choose to no longer take part in the decision-making process. If the other party truly just ignores requests to confer, at some point you will need to act in a legal fashion to change things. C.R.S. 14-10-131 authorizes modifications of decision-making when one party has acquiesced his or her role to the other. Additionally, some major decisions regarding children need to be made in timely fashion. If you put all communication requests in verifiable written form, such as e-mail, you can prove you at least tried to jointly make a decision. Most Denver area family law courts are not going to punish a person who tries to comply with joint decision-making efforts, but gets no response from the other side. One or two instances of non-communication will not cut it. Furthermore, there is generally not a need for major decisions to be made on a daily basis. Ultimately, after a significant time of non-communication or a significant number of communication attempts being ignored, you will likely be able to prove a pattern of the other party acquiescing his or her decision-making, thereby warranting a modification to your joint legal custody.

  3. My ex-husband took my child to a counselor without my permission. What can I do?

    The first step in answering this question is to determine whether there is sole or joint legal custody (more properly termed "parental responsibility") regarding the making of major decisions. If a party has sole decision-making, and presuming there is no written duty to confer, then taking the child to a unilaterally selected counselor would not be a violation of orders. If there is joint legal custody, there would be a duty to confer and to agree. Most Denver area family law judges would find the selection of a counselor and the child attending counseling to be a major decision. In such a situation, the unilateral selection of, and taking the child to, a counselor would be a clear violation of the tenets of joint decision-making. In such an instance, the most appropriate remedy would be to seek both remedial and punitive sanctions in a contempt of court motion filed pursuant to Colorado Rules of Civil Procedure, Rule 107. Of course, the least costly or litigious step would be to first ask the other party to stop the counseling, or to jointly select a counselor. If they will not, then proceeding with a contempt of court motion would be the appropriate action. Should the court find the other parent in contempt, it can enter remedial orders, including an order that counseling ceases, plus attorney fees. The court can also impose sanctions which can include jail time, a fine, or the posting of a monetary bond, which would be forfeited should a similar violation occur. Courts take violations of parental responsibility, or custody, orders seriously, as do we.
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