I want to discuss with you motions to modify parenting time. One of the biggest issues in motions to modify parenting time occur when a parent, who is the primary parent, wishes to relocate with the children to another state. In the law, that kind of relocation is called removal and it takes the permission of a judge or the other parent in writing and a court order in order for relocation to occur. Now, in those situations what is required is that the parent who wishes to move away with the children has to file a motion with the court making the request for relocation and stating the reasonable grounds for the relocation.
In Colorado, the court cannot require a parent to live in Colorado or anywhere. It is the children that are under the control and jurisdiction, what they call continuing jurisdiction of the court. If a parent wishes to relocate because that parent got a great job in Chicago and wants to move out of Colorado with the children, that parent is going to need to establish what is the criteria for that relocation that would serve the best interest of the children. Things like family members being in Chicago, increased financial access, schools, education, health care, all those kinds of things are a factor. Of course, the other parent can make an argument that the relocation is not in the best interest of a child.
What happens when a parent takes children out of Colorado with the intent not to return them to Colorado? I’m not talking about vacations or plans to see grandma over Christmas vacation. I’m talking about a parent who is sharing custody with the other parent and puts the kids in the back of the car in the middle of the night or takes them to the airport and they fly out of town, and essentially mother has abducted the children from the other parent. In those kinds of situations, one of the things that the court is going to look for is whether or not there is an active case that’s been filed in the court.
In a case where parents have never been married, but they share parental responsibilities of children and they’ve never had any court orders entered, a case can be filed called an allocation of parental responsibilities. That protects the parents from having one or the other abduct or take the children out of Colorado without a lawful court order. This is very important to parents who fear that the other party may pick up in the middle of the night and take the children to see family, like their parents who live in another state, without the permission of the other parent. Colorado’s law requires that before a child or children can be removed from the State of Colorado that they do so by either obtaining a court order or a signed written consent authorization from the other parent to relocate the children from Colorado.
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A lot of moms and dads ask us when do the children get to decide where they’re going to live and which parent they’re going to spend parenting with? A lot of these cases involve children that at the time of the divorce were maybe eight, nine, or 10 years old. Years later in a split custody situation a parent will say, “Well my daughter doesn’t want to go over and see the other parent anymore. She’s now 14 years old and she should be old enough to decide.” Colorado’s law is defined with respect to children by the Best Interest Statute. The Best Interest Statute in Colorado does not include an age for children to be able to have a say in when they can or cannot see the other parent or what kind of parenting time should be imposed.
In many of these cases what we do is we try to have either a neutral or expert appointed such as a child, family, investigator, or a parental responsibilities evaluator, or even a child therapist who may be seeing the children. Talk to the kids, get their input, so that their input can be provided to a judge to make a decision. Many times in Colorado a court is entitled to speak to children in camera, that means in chambers without a recording device or with a recording device and speak directly to children about what they see as problems with parenting and what they want. It’s always good to talk to a qualified lawyer about your options when you want to have children make a impact in the parenting case.
It’s important to understand the role that clients have when they hire an attorney and how clients and attorneys interact during the course of a family law case. Once again, keep in mind that there are a lot of examples of the types of family law cases that are in the system. Without the cooperation of a client, a lawyer cannot effectively do their job. Lawyers are trained to present their client’s side of the facts and version of the case that would be in the light most favorable to their clients and at the same time, exposing the weaknesses or the problems that the other side has.
Let me give you an example. A cooperative client is very useful to me, as a lawyer, in presenting information about the other party that I would not have any knowledge of or access to. In a case involving a child custody situation, where my client has known the other party for ten, fifteen or even twenty years, it’s very helpful to me, as a lawyer, for the client to give me a lot of information about the other parent.
In a situation that has come up recently my client was able to go back in time and tell me about the fact that the other parent had a long history of mental illness, was taking lots of medication and had lots of mood swings and that this affected that parent’s parenting. As a result of that, we were able to get a favorable outcome for my client to show that even though this other parent was a loving person, there were lots of problems associated with a long history of drug use and mental illness.
The last thing that I want to discuss about a cooperating parent is this. Your lawyer knows the judge. Your lawyer knows the system if they are experienced and they have tried hundreds and hundreds of cases. When a lawyer makes a recommendation that a client go take a drug class, go to the center on fathering, produce certain records, the lawyer is not doing that because the lawyer just wants to get you to do work. A lawyer is doing that so you can craft solutions to your case that are going to present you in a favorable light when the case goes to trial or a hearing in front of the judge. Without the cooperation of clients, the lawyers lose their effectiveness to make arguments in court and it diminishes the likelihood of success in front of a judge.
I have found that one of the most important facets of being able to offer clients legal representation in their particular family law case involves our paralegals and the role that our paralegals have in supporting our clients and assisting our clients through a mind field of all kinds of hurdles and obstacles that are part of their case. A good paralegal is a person who is going to maintain the day-to-day contact with the client for a variety of reasons and to assist the client in understanding how the legal process works, what they can expect, and assisting the lawyer in making sure that the lawyer has what the lawyer needs when the lawyer goes to mediation or is in court.
Paralegals in this office are available by email. We even have a 24/7 phone number to contact us. Paralegals can answer simple questions and that will save the client money, because paralegals bill out at a different hourly rate than attorneys do. Paralegals can go over financial records, financial statements, clients timelines of events, and they can be instrumental in the success of your case. We rely on paralegals who in this office have a great deal of experience and can offer you as the client the kind of connection to this law firm that you need.
A lot of parents come to us and they tell us that the other parent is not following the parenting orders and they want to know what their options are to protect their rights. In Colorado, one of the features of our law says that both parties shall encourage and foster a loving relationship between the children and the other parent, and both parties are held to a very high standard of following the parenting orders of the court. Experienced lawyers who represent moms and dads in Colorado and represent clients in child custody cases know that we have a specific law in Colorado that allows for the enforcement of parenting time orders. This is a very clear and effective law that says that if a parent has violated a parenting order and the court finds that a parent has willfully failed to follow a parenting order, that the court shall award attorney’s fees to the prevailing parent.
Recently, I had a case where the children were supposed to come back from California after seeing their father for Christmas on a flight from Denver two days before school was supposed to begin. Mom went to the airport at DIA to pick up the children and father did not put the kids on a plane, and in fact sent mom a text message saying, “The kids are staying with me.” We filed an emergency motion to enforce and we were successful in not only getting the kids back, but in getting attorney’s fees for my client for having to enforce the parenting order.
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