Frequently Asked Colorado Custody Questions Part 4
- 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.
- I disagree with the Child and Family Investigator’s recommendations. What are my options?
A Child and Family Investigator (CFI) is a neutral third person appointed to a divorce or custody case to make recommendations to the court regarding visitation, residential custody, and decision-making (legal custody). In essence, a CFI is a court appointed expert. In most instances, it is our belief that courts are generally 90+ percent likely to follow a CFI’s recommendations, absent gross ineptitude or misconduct. In any case, it is likely that one side or the other will be unhappy with the CFI’s findings. For that parent, there are generally three options. One can certainly negotiate settlement more or less based on the CFI’s report, knowing that the other party may not want to take the risk or spend the funds required to go to a contested hearing in front of the judge. The second option is to seek a second opinion, or evaluation, from an alternate expert. Specifically, one can seek a parental responsibilities evaluation, formerly known as a “custody evaluation,” pursuant to C.R.S. 14-10-127. Unless a court determines that a request for a PRE is sought solely for purposes of delay, the court must grant the request for an evaluation. A 14-10-127 evaluation is going to be more in-depth than the CFI investigation, but also much more costly.
Not all people in a Denver area custody battle can afford the roughly $5,000 required to start a PRE. The PRE will certainly provide a potential counter expert opinion to the CFI. Conversely, the evaluator may come up with similar conclusions as the CFI. If one is not able to afford a PRE and not inclined to settle, the third option is to proceed to hearing, with the hope of challenging the conclusions of the CFI. This is certainly the least optimal approach, but often a reality in these economic times. One should remember that there is an entitlement to get the CFI’s file, which can certainly aid in court preparation.
- 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.
- 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.
- What is a normal out-of-state parenting schedule?
We deal with all aspects of divorce and custody cases related to children. As the economy has become more national and uncertain over the years, it has become more common for people to leave Colorado for either job or other economic reasons. As such, our experienced attorneys have recently seen more cases in which one parent or the other needs to relocate from Colorado, or is already out of state. In these instances, a parenting plan will need to be developed that affords as much time as possible for the non-custodial parent. Of course, courts will set visitation in an age-appropriate fashion, recognizing that younger children may not do as well as older ones when it comes to being away from the custodial parent for extended periods of time. Assuming the children are old enough, a common out-of-state parenting plan would likely include the children being with the non-custodial parent for one week of the Winter Break, alternating Spring Breaks (sometimes each Spring Break), and the vast majority of the Summer. Usually, the custodial parent will get at least a week at the beginning of summer and a week at the end, to get the children ready to return to school. Additionally, it is not uncommon for the schedule to include provisions allowing the non-custodial parent to return to Colorado at least one weekend a month to see the children. In some instances, Thanksgiving break may also be added, as well as long weekends.
As travel costs for the children are generally going to be split proportionately to the parties’ incomes, as indicated in the Colorado child support statute, C.R.S. 14-10-115, courts will generally only order costs be split for the major blocks of time, not the lesser weekends. In light of the cost of travel, it is not common for the other lesser holidays to be added into an out-of-state schedule, unless the non-custodial parent is willing to travel at his or her own cost for such. Again, each family is different and the above stated schedule may not work for all. Our experienced custody and visitation attorneys can help you with developing your out-of-state parenting schedule.
Main Custody FAQs