Custody, referred to as the “allocation of parental responsibilities” (APR) in Colorado, is determined according to the best interests of the child on a case-by-case basis. The same laws apply regardless of the marital status or genders of a child’s parents. While the statutory factors judges consider are consistent from case to case, no one formula is applied. As in many areas of family law, judges have broad discretion to decide what is in a child’s best interests, though they often rely on court-appointed experts to assist them. The Court must respect the fundamental rights of legal parents to the care, custody and control of their children as granted by the U.S. Constitution.
Colorado law distinguishes between parenting time, formerly physical custody, and decision-making authority, formerly legal custody. Decision-making in turn is further broken down into medical, educational, religious, and extracurricular decision-making. While many of the factors courts must consider in determining parenting time apply to decision-making, they are distinct and differ in some respects. For example, a parent may have equal parenting time and joint medical decision-making with the other parent even though the other parent exercises sole educational decision-making.
Given the difficulty of proving or disproving child-related claims in court, judges depend heavily on neutral, third-party experts. These include Child Family Investigators (CFIs), who are not required to be licensed mental-health providers, and Parental Responsibility Evaluators (PREs), who are so required and can perform psychological testing and drug/alcohol evaluations. The reports issued by these experts walk through the best interests factors just as judges do in making parenting time and decision-making recommendations to the court.
Domestic violence or child abuse by one parent creates a presumption that joint decision-making should not be awarded over the victim parent’s objection, though in cases of domestic violence, the presumption can be overcome by credible evidence that the parties are able to cooperate and make joint decisions in a safe way for the victim. Family law courts can make findings that domestic violence and abuse occurred even if the incident did not result in a criminal conviction. When addressing serious issues like violence, drug/alcohol dependence, and severe mental health issues, parents may find themselves in a step-up parenting plan, where for example their parenting time starts without overnights and under supervision and is gradually increased over time as they attain certain milestones, such as monitored sobriety and mental health treatment. Conversely, a parent may be subject to an emergency motion to restrict his or her parenting time if such behavior arises; even if a motion to restrict parenting time is not ultimately sustained, parents are automatically restricted from all but supervised parenting time with their children for up to two weeks after such a motion is filed until the allegations in the motion can be addressed by the court.
Parenting time and decision-making are further complicated when third parties, such as former stepparents, grandparents, or unrelated caretakers request parenting time or decision-making authority with children. While the law on APR provides a path for non-parents to be allocated parenting time, such cases require a high evidentiary burden given the Constitutional weight given to decisions made by the child’s legal parents, including with whom their children spend their time.
A skilled custody attorney can help your family navigate the often complex and surprising world of APR in Colorado. The attorneys at Wells Family Law are child-centered and passionate when the future of your children is placed in their hands.