Frequently Asked Colorado Custody Questions Part 2
- I have custody of my kids. Can I move out of state with them?
Relocation of children outside the Denver metropolitan area is one of the issues our firm handles for our domestic relations clients. When a party has primary residential custody, or even sole decision-making, he or she does not have the legal right to relocate the children out of state, or in a manner that geographically impacts visitation in a significant manner, without written permission from the other party or an order of the court. In reality, we believe that relocation is the most difficult battle to win. As with other aspects of custody cases, a court must make the decision as to whether to authorize relocation of the children based on the “best interest standard.” C.R.S. 14-10-129, the statutory section dealing with modifications of visitation, sets forth the criteria a court will look at when assessing a request to relocate. In instances in which there are two good parents and significant visitation for the non-custodial parent, getting permission to relocate is highly unlikely.
In essence, the party wishing to move with the children must have a very good reason, such as a new job making much greater income, or perhaps the other parent is not following his child support or alimony obligation, or maybe that parent has not been exercising his or her visitation for quite some time. Each case is different and unique, but a court will be looking for a significantly important reason for the move, whether reasonable visitation can be implemented for the party left behind, and whether the move is truly in the kids’ best interest. A new spouse or significant other living, or moving, out of state is not a valid reason in the eyes of most court. It is not uncommon for the court to appoint a child and family investigator or parental responsibilities evaluator to investigate all aspects of the case as relate to relocation. We can help you assess your potential relocation case, whether bringing it or fighting against it.
- What’s a Child and Family Investigator?
A Child and Family Investigator (CFI) is a neutral third person appointed, pursuant to statutory section C.R.S. 14-10-116.5, to investigate aspects of a custody case, or the child aspects of a Denver divorce case, and to make recommendations to the court. CFI’s can be appointed at the request of either party or by the court, should it believe a CFI is needed. Most CFI’s are either mental health professionals or attorneys. All should have special training regarding the investigation of a custody case and are bound by various rules. A CFI can investigate any, or all, aspects of a custody case, including residential custody, visitation, and legal decision-making (parental responsibility). After an investigation, which generally takes two to three months, the CFI will issue a written report. The CFI process and final report can be the greatest factor in the outcome of any custody case. Our Denver child custody lawyers generally say that a court is “90+ percent” likely to follow the recommendations contained in the CFI report. As such, our attorneys strive to make sure each client in a case involving a CFI, whether an initial case or a custody modification, is fully informed regarding the process and the right things to say and do when dealing with the CFI. Cases can be won or lost based on the impression a party makes on the CFI. The process will include the CFI meeting not only with the parents, but also talking to the children.
Prior to April 2011, most CFI’s required between $2,000 to $4,000 to start a case. The court ultimately has the decision as to how fees will be paid, and sometimes orders the initial cost split proportionate to the parties’ incomes or just one party to pay. The court can also appoint CFI’s for indigent people at the expense of the state. Beginning April 2011, the Colorado judiciary set forth new guidelines for CFI’s including a $2,000 cap on their overall fees, barring extreme circumstances, and the removal of their quasi-judicial immunity. As a result, a huge portion of the experienced and known CFI’s quit taking CFI appointments, instead choosing to do more comprehensive, and more expensive, parental responsibilities evaluations pursuant to C.R.S. 14-10-127. We can help you understand all aspects of your custody case and assess whether you need a CFI.
- My ex isn’t following court orders regarding visitation. What should I do?
You shouldn’t start withholding your child support. You generally shouldn’t send the police over to his or her house to enforce the visitation orders. You could file a contempt of court action in your custody or divorce case. We generally recommend the filing of a “motion to enforce parenting time” pursuant to C.R.S. 14-10-129.5. A motion to enforce parenting time is supposed to take priority on the court’s docket, meaning it should be dealt with expeditiously. In addition to such a motion potentially getting you make-up parenting time, the court can also order attorney fees, modifications of the visitation, and various other remedies that might come with a contempt of court action. The court can also require the custodial parent to post a financial bond with the court, which will be forfeited if orders regarding visitation are further violated. No children should be wrongfully withheld from their parents. Court orders should be followed. If they are not, our attorneys can thoroughly advise you of your rights and all aspects of enforcing visitation orders.
- 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.
- 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.
Main Custody FAQs