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What Is Child Custody?

Child custody, or simply “custody,” is the common term most people use when discussing which parent, or third person, a child lives with pursuant to a court order. Custody is also a legal term, though no longer used in Colorado, which was used to describe legal rights and responsibilities conferred upon a parent, or both parents, as the result of a child custody case or a dissolution of marriage (divorce) case. In a Denver child custody case, today, the proper legal term used to define parental rights is “allocation of parental responsibilities.” However, even attorneys still often use the term, custody, when speaking with other people or among themselves.

Using a mix of current and prior terms, custody (now parental responsibilities) is divided up into two categories. The first category relates to physical custody, which essentially ties into who has a child living with them, and when, as per a court order. The second category relates to legal custody, which essentially ties into who has the legal right to make decisions for a child pursuant to a court order.

When speaking of physical custody, there are a couple of variations which can arise as the result of a family law court case. One scenario would be one in which the court order indicates that a child, or children, live primarily with one parent. In lay terms, that parent might say, “I have custody of my kids.” Though Colorado no longer uses such terms, one might currently say that that parent is the primary residential custodian of the children. Allocation of parental responsibilities includes allocating of time to the parents and, under current notions of physical custody, each parent may be allocated parenting time (visitation). Though one parent may be allocated the majority of time, which may bring certain additional rights, such as tied into school choice, the other will generally also be allocated parenting time, thus their own rights as to physical custody during the set times allocated to them. In some cases, the parents share equal parenting time. In a 50/50 situation, neither could use the old term of “I have custody of my kids,” as their rights to physical time with the kids are no less or no greater than those of the other parent.

When dealing with a custody case, parenting time is likely to be the most contentious issue, as each parent will generally want as much time as possible with the children. Courts generally determine what the physical custodial rights for each parent will be based on a list of factors set forth in C.R.S. 14-10-124, which details what things a court is to look at when formulating those orders. Those factors can include each parent’s involvement with the child or their ability to promote a relationship between the child and the other party.

The next facet of custody ties into decision-making. The term “legal custody,” used to be used to describe a parent’s authority to make major welfare, educational, and health decisions regarding a child. Legal custody can be either sole or joint. It can also vary from topic to topic, meaning parents might have joint decision-making on one issue, such as medical, but one of them might have sole on the other two. Joint decision-making is the norm in Colorado, but there are cases in which sole is appropriate, generally tied into safety or mental health issues of a parent.

Pursuant to C.R.S. 14-10-123, non-parents can also seek custody over a child under certain circumstances. Likewise, grandparent visitation cases generally fall under the umbrella of “custody,” though technically custody is not being sought.

Modification of child custody orders, both as to parenting time and decision-making, can occur until a child turns eighteen (18), at which time the court loses jurisdiction.

People sometimes use the lay term “sole custody.” This is generally not a term used by divorce and child custody attorneys and, in fact, for there to truly be “sole custody,” one parent would have to have no parenting time rights or decision-making authority. Of course, that can be the case in rare instances.