What Does a Court Look for When Deciding Child Custody?

Pursuant to Colorado Statute, “custody,” or “child custody,” is now called “parental responsibilities.” Prior to the terminology change which went into effect in 1999, the familiar term custody was used. Custody can be divided up into two primary categories, specifically physical custody and legal custody. Physical custody relates to which parent has a child when, including which parent the child might primarily live with. Legal custody relates to the legal right to make major decisions for a child. These decisions can include medical, educational, and general welfare decisions.

In any Colorado child custody case, or divorce case with children, the optimal conclusion would be for the parents to agree not only on a comprehensive visitation schedule, but also to a joint plan for deciding things such as which school the child will go to or who the orthodontist will be when it comes time to get braces. Though a good portion of child custody disputes to settle without the parties ever having to undertake a full blow evidentiary hearing in front of a judge, many do not. When faced with the prospects of a court hearing, or perhaps a custody evaluation from an expert, it’s advisable to be aware of what the court looks for when making determinations of parenting time and decision-making. The primary statute judge’s look to when allocating child raising rights and duties in Colorado Revised Statues 14-10-124. Section 124 sets forth the “best interest” standard most people who have dealt with child custody issues have heard of.

Though most lay people believe “best interest” is derived from a common sense analysis of what’s best for a child, the reality is that what is deemed “best” for a child is going to be subjective to each parent’s opinions, which may differ, or to the judge’s beliefs, which may differ from both parents’. Rather than predicating child custody determinations on each individual judge’s subjective viewpoint on child rearing, Section 14-10-124 sets forth a list of specific factors a court is required to look at when making determinations of both parenting time and decision-making. Family law attorneys are aware of these factors and parents should be, too.

C.R.S. 14-10-124 (1.5)(a) indicates that a court should look at the following 9 factors related to allocation of parenting time:

  1. Both parents’ wishes related to parenting time;

  2. The child’s wishes related to visitation, if that child is old enough and mature enough to express a reasoned preference.

  3. The relationship between the child and each parent, his or her siblings, and other significant relationships of the child which may “significantly affect the child's best interests.”

  4. The child's adjustment home, school, and community.

  5. The parents’ and child’s physical and mental health (a disability cannot be the sole basis to impede parenting time).

  6. The ability of each parent to foster a positive relationship and contact between the child and the other parent.

  7. Whether the pattern of past involvement of the parents with the child is reflective of a system of values, time commitment, and mutual support.

  8. The physical proximity of the parents’ homes to each other as might impact parenting time and the child’s needs.

  9. Each parent’s ability to place the needs of the child over his or her own.

C.R.S. 14-10-124 (1.5)(b) sets forth that, in addition to the parenting time factors set forth in (a), a court should look at the following factors when allocating decision-making responsibilities:

  1. Evidence of the parents’ ability to make joint decisions and cooperate with each other regarding such.

  2. The past pattern of involvement tied into values, time commitment, and mutual support and whether such demonstrates that the parents have the ability to make joint decisions which promote “a positive and nourishing relationship with the child.”

  3. Whether joint decision-making on some or all major issues will promote more frequent contact between the child and each parent.

Statute does not indicate that one factor is more important than the other. Regardless, the reality is that courts are generally going to put a greater weight on certain factors depending on the circumstances presented in each case. When dealing with issues of allocating parenting time or primary residence, the court is certainly going to pay more attention to the past pattern of involvement and time commitment, coupled with the child’s adjustment to his or her home than the other factors. When looking at allocating parental responsibilities regarding the making of major decisions, a court is going to not only look at involvement, but also each parents ability to place the child’s needs above their own and the ability of both to work together. One of the critical factors for either a parenting time or decision-making analysis is a parent’s ability to foster a relationship between the other parent and the child. A parent who demonstrates a pattern of trying to marginalize the other parent’s time with the children, role in their lives, or the other parent’s ability to take part in the making of decisions runs the risk of negatively impacting their own case, which could even include less parenting time or loss of residential custody. Given the current systematic theme of equal parenting time and joint decision-making which permeate cases today, most child custody attorneys know just how important it is to demonstrate the ability to to value the relationship between the other parent and the child.

In any case, the judge will ultimately determine which factors weigh most heavily in his or her decision. A judge in an Douglas County child custody case might find certain factors much more relevant that a judge in an Adams County case. Furthermore, two judges presented with identical facts might come to completely different conclusions based on their assessments of “best interest” and C.R.S. 14-10-124. Given the array of possible outcomes, C.R.S. 14-10-124 should be treated as a framework for structuring a case, with the understanding that a judge’s discretion will ultimately control the outcome.

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