Frequently Asked Colorado Custody Questions Part 3
- I am in the military and being deployed overseas. What happens with my parenting time and joint legal custody?
The Colorado legislature has deemed the deployment of a person in the military to be a legitimate endeavor warranting special treatment under statute. As such, pursuant to C.R.S. 14-10-131.3, any changes to parenting time or decision-making are going to be viewed by the court, as per statute, as interim or temporary in nature. A service member going overseas should certainly attempt to get any agreements in place prior to leaving regarding parenting time or decision making. Statute indicates that upon return to Colorado, and the filing of a notice with the court, parenting time and decision-making as per prior orders resumes. Thus, those in the military are afforded the protection of knowing that being deployed overseas will not likely be used against them in future legal proceedings. One should also keep in mind that statutory standards for modifications of legal custody/decision-making would still apply. Fortunately, in this day of internet, cell phones, and Skype, decision-making regarding major issues should not be seriously interrupted from a logistical standpoint due to overseas deployment. We are ready to help Armed Forces members with their custody and visitation matters, before and after deployment.
- 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.
- How often can my ex file a motion to change custody?
The answer to this question depends upon the content of the existing orders. If one person has the majority of the visitation, or time, with the children, C.R.S. 14-10-129(1.5) indicates that absent a showing of danger, a motion to modify parenting time that also changes the party with whom the children reside a majority of the time, can only be filed after 2 years has passed from entry of the final orders or disposition of the most recent motion to change custody. If the parties already have equal parenting time, there is no set time frame in terms of how someone must wait to try to change the orders as to custody. That being said, most Denver family law courts will ultimately have an issue with someone who files repeated motions. The absolute exception to the 2-year rule is endangerment, whether physical or emotional in nature. When children are in danger, statute and courts understand that action may need to be taken without waiting.
- 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.
- 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.
Main Custody FAQs