By: Stephen J. Plog
Many divorcing couples who have children struggle with the contentious issue of dividing parental responsibilities after their separation.
Trying to cooperate with your soon-to-be ex-spouse can sometimes be difficult. It is incredibly challenging if one parent is highly combative, plans to live far away, or threatens your child’s safety.
However, Colorado encourages shared parental responsibilities. Colorado courts prefer that parents agree on a plan for parenting time and decision-making responsibilities (formerly known as physical custody and legal custody).
While courts often presume that equal or near-equal parenting time is best for children, that may not be practical or appropriate for your situation.
In Colorado, the term “full custody” is not something generally used by attorneys, nor a term even articulated in statute.
As a family law practitioner, I’ve talked to plenty of people who have indicated they want “full custody.” Under Colorado law, courts allocate parental rights to parents as part of a divorce or custody case and the term “custody” is no longer used.
Technically, “full custody” would mean a parent has zero visitation or decision-making rights with their kids. That is only going to happen in the most egregious safety situations, such as relates to abuse, significant substance use, or situations of extreme and untreated mental illness. Thus, it is rare.
As relates to decision-making, one parent can have sole decision-making. In those cases the parent would have “full” legal custody. For the family law practitioner, it’s important to identify what the client means by “full custody” and to explain, from there, what the law or court would likely allow.
Oftentimes, people use the term to mean they want the child to live the majority of the time in their home. Using the term in that context, if you think you have grounds for “full custody” of your child after your divorce, i.e., you want to be the primary residential parent, you will need to show the judge that Colorado’s presumption for equal shared parenting time is not in your children’s best interest.
The experienced child custody attorneys at Plog & Stein, P.C. understand that allocating parental responsibility and parenting time under Colorado family law can be complicated. Our attorneys can help you navigate Colorado’s parental responsibilities process and produce a parenting plan that will meet your goals.
What Is Child Custody? The Legal Terms You Need to Know
Many states use the term “joint custody” to mean shared responsibility for the child. Those states use the term “legal custody” when referring to decision-making ability and “physical custody” to describe the responsibility to physically care for a child.
Colorado amended its domestic relations laws in 1999 to allow for parenting arrangements that more naturally reflect how the family dealt with parenting before the separation. The amendment changed the language we use to talk about children in divorce cases. Most notably, the new law abandoned the word “custody.”
Today, if you want “full custody” of your child, you will request a majority of the “parental responsibilities” in your parenting plan.
A Colorado custody or is either going to come via agreement the parents, often called a parenting plan, or from a written order entered by the judge in your divorce or child custody case. Colorado divides parental responsibilities into two categories:
- Decision-making authority—the ability to make major medical, educational, and religious decisions regarding the child, and
- Parenting time—where the child is physically (i.e., where the child lives and when, who the child will be with during holidays, traditional “visitation” time).
Parenting time and decision-making authority are two completely separate concepts. Again, you may cooperate with your spouse and agree on a parenting plan. The judge will approve your plan in the final divorce order. If you can’t agree, the judge will formulate a plan in the child’s best interest.
Is It Hard to Get “Full Custody”?
How difficult is it to get “full custody” of a child in Colorado? If using the terms in a truly correct sense, it’s extremely difficult. If talking about primary residential care, the outcome of your case will depend on the circumstances.
If talking about sole decision-making authority, most courts are going to order joint parental responsibilities regarding the making of major decisions, absent clear reasons while sole is more appropriate.
When it comes to decision-making authority, most divorcing couples with children share that authority equally. Typically, a court will grant sole decision-making authority to one parent only if they show that the other parent is not fit to make decisions on behalf of their children, if there has been domestic violence which makes shared decision-making unsafe, or if the court finds an inability for the parties to make decisions together.
It can be easier to gain primary residential custody of your child. Although courts prefer to give each parent as much parenting time as possible, many circumstance make equal parenting time impractical.
For example, parents may live too far apart to exchange the children frequently, or one parent’s work may prevent them from spending as much time with the children.
Perhaps one parent even prefers to have less parenting time. In that case, the court will designate one parent as the primary residential parent, with whom the children live most of the time. The other parent will have scheduled parenting time with the children—which can be weekends or weekdays, on holidays, and for extended time in the summer, but sometimes more.
In some cases, one parent may just be more attended to the child’s educational, medical, emotional, or logistical needs, which can lead to a parent being granted primary residential custody.
It is rare for a parent to receive no parenting time at all unless the court terminates the parent’s rights. In circumstances where one parent has abused or neglected the child, the court may limit the parent’s contact with the children or order all visits to be supervised.
Yes, it’s difficult to establish the grounds for full physical custody of a child in Colorado. Under Colorado law, both parents share equal rights and responsibilities toward their children until orders are entered saying otherwise.
In its 1999 family law amendment, the Colorado legislature introduced a preference for shared parenting. It wrote, “the general assembly urges parents to share the rights and responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents.”
Further, The Colorado Foundation For Families and Children reported that “it is unusual for a parent to be given no parenting time at all, unless the court terminates that parent’s rights, or the parent has been convicted of a crime.”
What Is the Best Way to Get the Majority of Parental Responsibilities?
Under Colorado’s Uniform Dissolution of Marriage Act, to receive a majority of the decision-making ability and parenting time, you will need to show that it is not in your child’s best interests for the other parent to share those responsibilities equally.
To do so, you will need to provide evidence showing the other parent’s shortcomings. You will have to explain what you believe is in the child’s best interests and why.
This is not a time to point fingers and make false allegations. Raising false or frivolous allegations could subject you to court sanctions or risk not having your child custody proposal approved.
Divorce proceedings are the time to show that you can provide a stable home for your children. Begin putting your children and their interest first immediately.
Remember to remain professional if you must go to court. You want to generate a good image and project a strong representation of a parent who should be in charge.
We know that emotions are a part of a divorce, but consider approaching the allocation of parental responsibility like a business deal. Leave the emotions at the door and try to agree on a plan that works best for your child.
If agreement cannot be reached, your attorney will be there to advocate for you in court.
How Can I Get Decision-Making Responsibilities?
When allocating decision-making responsibilities, the court looks mainly at the parents’ past behavior. The court looks for evidence of whether:
- The parents can cooperate and make decisions jointly;
- The parents’ behavior has historically reflected a system of values, time commitment, and mutual support that indicate that the parents can share decision making and provide a positive and nourishing relationship with the child; and
- Shared decision-making will promote more frequent or continuing contact between the child and each parent.
If you show that any of these are not true, the court might consider granting decision-making responsibilities to only one parent.
How Do I Get Full Parenting Time?
In approving parenting time (where the child will live or when they can visit each parent), the judge will ensure that your parenting plan is in the child’s best interest. Colorado law requires that your parenting plan provides for the child’s safety and “the physical, mental, and emotional conditions and needs of the child.”
When determining the best interests of the child for purposes of parenting time, the court will consider many factors, including:
- The parents’ wishes;
- The child’s wishes, if they are sufficiently mature to express reasoned and independent preferences as to the parenting schedule (typically at least 12-14 years old);
- The child’s relationship with their parents, siblings, or any other person in their lives;
- Domestic violence reports;
- The child’s ability to adjust to changes in their home, school, or community;
- The mental and physical health of all individuals involved;
- The parent’s ability to encourage the sharing of love, affection, and contact between the child and the other parent (excluding situations of domestic violence or abuse);
- A past pattern of involvement with the child that reflects a system of values, time commitment, and mutual support;
- The physical proximity of the parents, considering the practical considerations of parenting time; and
- The ability of each parent to place the needs of the child ahead of their own needs.
When approving parenting time, Colorado law encourages frequent and continuing contact between both parents and the children. Therefore, if you want your child to live with you most of the time, you must show that sharing parenting time equally with the other parent is not in the child’s best interest.
Reasons to File for Full Custody
In Colorado, the paramount consideration when it comes to child custody is the best interest of the children. It’s important to keep this in mind as you think about what you want your custody and parent-time arrangement to look like.
Some parents fight for custody of their children out of a desire to “win the divorce” or get back at the other parent. These are not good reasons to fight for full custody.
However, there are many good reasons you might want to file for greater control of the parenting responsibilities, including:
- You can provide a more stable environment for your child than the other parent;
- You have been more involved in your children’s lives than the other parent;
- You are concerned about your children’s safety in the other parent’s home;
- The other parent lives far away;
- The other parent travels frequently for work or works odd or long hours;
- You are concerned that the other parent will not provide adequate care or supervision for the children;
- The other parent has attempted to undermine your relationship with the children; or
- You and your ex do not get along and cannot cooperate well enough to make equal parent time work.
Children have the right to be emotionally, mentally, and physically safe when in their parent’s care. They also have the right to reside in and visit homes without domestic violence and child abuse or neglect. Therefore, you should speak up if you believe that the child’s other parent will violate these rights during their parenting time.
The reasons you might want to file for control of the parenting responsibilities include: In rare circumstances, you may find it necessary to seek severe limitations on the other parent’s parent-time or even ask the court to require that visits be supervised. Such situations may include where the other parent has a history of
- Committing domestic violence,
- Abusing drugs or alcohol,
- Criminal convictions,
- Mental illness, or
- Taking the children or refusing to return them in violation of a parenting order.
Abuse to an adult (the child could witness domestic violence);
- Physical or emotional abuse that affects the child’s safety;
- Drug and alcohol abuse; or
- Mental illness;
- Incarceration; or
- Kidnapping (removing the child from the state in violation of a parenting order).
If one parent has committed child abuse or neglect, then standard shared parenting time is not in the child’s best interests. The court will review all the evidence available (testimony from other family members, experts, teachers, or court-appointed guardians) to make its determination.
If shared parenting time is unsafe, the court may require supervised parenting time or issue a restraining order against that parent.
Credible Evidence and Credibility
If credible evidence shows that equal shared parenting time is not in the child’s best interest, a Colorado court may award one parent a majority of parenting time and parental responsibilities. For your evidence to be credible, it must be believable.
The story you tell, the things you do, and how other people describe you must share threads of consistency. You want to portray yourself as a responsible adult who can be in charge without further interference from the court. The best parenting plans are often ones where both sides agree and can carry out the plan without bickering and harming the child.
Should You Hire Legal Assistance to File for Child Custody?
If you believe that you have grounds for full custody of a child, or are facing a parenting time or child custody battle, it is in your best interest to hire an attorney experienced with complex divorce and parental responsibility disputes. It is challenging to overcome Colorado’s preference for shared parental responsibilities.
Your attorney will guide you through the legal process and help you collect credible, believable evidence to prove your case. We will fight for you and your child’s best interests. Our attorneys have decades of combined experience and can help you see the big picture through your divorce. Contact the Plog & Stein P.C. family law team today.