Child Custody Frequently Asked Questions: Initial Determinations

• How is custody decided?
• What is “primary residential custody”?
• My husband is threatening to take the children and move to California. What can I do?
• Can I request genetic testing in a divorce case with children?
• I moved to Colorado 3 months ago. Can I file for custody?
• 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?

FAQs Page

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.