Father’s Rights vs Mother’s Rights in Colorado

This topic concerns whether Colorado is a Mother’s Rights state or a Father’s Rights state in custody actions. I’m gonna talk to you a little bit about the law when it concerns whether or not Colorado favors mothers over fathers or fathers over mothers. In fact, in Colorado, the law is gender neutral. That means that the court makes a decision about what’s best for a child regardless of whether or not the parent who is requesting parenting time or primary care is a man or a woman. It is not something that a court is even allowed to consider whether one parent is female or male.

I’ve often heard advertising from lawyers stating that they are a father’s rights law firm and I have to chuckle when I hear that because obviously that advertisement is meant to place fear into the the heart of a father who’s seeking parental rights. Unnecessarily, that father should know, just like all mothers should know, that when a judge decides parenting time and custody, a judge is doing that regardless of gender. That means that the judge is colorblind and is not going to prefer a man or a woman, and a father or a mother should not have preference in a custody case.

A court has to carefully consider the child’s best interest. The court is going to look at what kind of pattern of parenting time has taken place between the parties, how are the children or the child bonded with each parent. And this is another serious, thoughtful consideration that you should be making when you are involved in one of these cases, so that you can come up with a strategy that you know a judge is going to be looking at in deciding your child custody case.

What Is a Civil Union?

In Colorado civil unions have the same procedure as the civil divorce statutes. That means that same sex couples who have children or who do not have children are going to be treated the same way as heterosexual couples going through a divorce.

They’re going to be given the same rights and the same responsibilities as any other couple in custody actions or divorce actions. So when there’s been a civil union or a marriage involving same sex couples and a year or two years go by or into the future those couples wish to get divorced in Colorado they’re going to be given the same rights and responsibilities under the law to terminate or end their marriage as any other parties would be.

It’s always important to consult with an attorney when you’re going through this process who’s familiar with the civil union laws and how those may have different kinds of aspects to them than other cases but they are going to be treated by the court in a fair way just as every other type of family law matter.

Where Do I File My Family Law Case?

I want to talk to you a little bit about where you should file your case if you’re going through a divorce, whether it is a civil union divorce or not, or a custody action. In a child custody action, the child must be in Colorado and in the county in which the child can be found for at least 182 days before it’s permitted to file an action involving allocation of parental responsibilities.

In a divorce action, there are more complex rules. One of the parties must allege in filing a petition that at least one of the parties has been in Colorado for more than 92 days prior to the petition being filed. If there are children, that party must be able to show that the children have been here in Colorado for more than 182 days, so it’s a combination of the two. But let’s suppose that a couple was married in the state of Massachusetts and they were married six years ago in Massachusetts and they’ve been living in El Paso County for the past year. It doesn’t matter where they were married as long as the court has subject matter and personal jurisdiction over the parties, meaning that as long as they can establish that they’ve been here for more than 92 days then either party can file a petition or in some situations parties file petitions together and wait 92 days until the court can grant a decree.

Decrees of dissolution of marriage are granted in one of two ways. One way is obvious, it’s through an agreement. Those agreements must be signed, they must be in writing, and they must spell out all the details as to how all the property or assets and debts are divided and how spousal maintenance is to be determined. In cases involving parenting you must also have a parenting plan that describes child support and how all the parenting is to be shared. And the other option, of course, is that a judge is called upon to make a decision on contested issues and has to make rulings as to how the marital estate and how custody is going to be determined.

Grand Parent Rights

What happens when a grandchild of a grandparent is in a situation where a biological parent has passed away? Does that grandparent have rights to custody or visitation? There is a statute in Colorado that deals with grandparent visitation that’s different than the grandparents’ rights to file for custody rights.

Visitation is where the grandparent is before the court by the filing of a petition that says that the grandparents’ child has passed away and that there are grandchildren that that grandparent wants to be able to see or have visitation rights with. A court still must determine the best interest of the statute of the child, and that’s per the statute and the law in Colorado, and whether or not it is in the best interest of the children to see that grandparent.

Ultimately that decision will be made by a judge. A lot of times grandparents and the surviving parent, can reach an agreement because the other parent recognizes that having grandparents involved in their children’s lives is significant and important to the children. In many other cases, a surviving parent may say to the grandparents, “I don’t feel that your involvement with the children is in the children’s best interest, that you’re disruptive, that you’re causing them stress and anxiety.” And the court has to make that decision. Based upon a number of cases that have come out over the years, a parent ultimately has a fundamental liberty interest as to the care, custody, and control of their children.

So when it becomes a contest as to whether or not a parent is acting in a child’s best interest, a court has to weigh that presumption in favor of a parent’s decisions over that of a grandparent’s decision. It’s important to talk to an experienced attorney that deals with grandparents’ rights when you are thinking about filing one of these kinds of cases to maintain contact with a grandchild or grandchildren after the passing of a parent.

The Need for Life Insurance in Custody and Child Support Cases

Oftentimes parents will ask, “Well why do I have to maintain life insurance if I’m going through a divorce and we have children? Why do I need life insurance?” There are two ways I have seen that a court will enter orders for a parent or parents to keep life insurance in effect.

One is obviously where children are involved and the parents are both providing support for the child or children. A life insurance policy will protect the children’s interest if the children lose the love, affection and economic support of a parent if that parent dies before the children turn 19 years of age or older.

The other situation is mandated by statute and spousal maintenance cases where a parent or a party has been ordered to pay spousal support to the other party, commonly referred to as alimony. Colorado revised Statute 14-10-114 says when there is a spousal maintenance obligation the Court shall enter an order that the party who is paying spousal maintenance also be ordered to carry a life insurance policy on his or her life so that in the event that that person dies before the spousal maintenance obligation is paid in full there will be sufficient life insurance, called collateral, to go to the party receiving spousal maintenance.

To determine the amount of life insurance that’s going to be necessary in those kinds of cases I oftentimes consult with a forensic CPA who is instrumental in helping me and the parties decide what the appropriate amount of life insurance is. But the answer to that question is that the court certainly will order life insurance in those cases involving spousal maintenance and you should be aware that when you are making these kinds of decisions in your case.

When Does Child Support End?

Today we’re going to a little bit about child support and when child support end, and how to get a court order that says that I don’t owe child support any longer.

A feature of Colorado’s child support law is that child support must be paid until a child turns 19 years of age or is considered emancipated by law. If a child has special needs the court may have jurisdiction to determine that child support be paid beyond age 19.

What do you do when children that you’ve been paying child support for, are turning 19 years of age? The most common way is for the parties to renegotiate the child support amount as each child turns 19 years of age. That would require exchanging financial affidavits and child support worksheets. This is important because many people think, “If I have three children and I’m paying 1,000 dollars a month on child support, when the oldest turns 19, I’m just going to subtract one third of the 1,000 dollars and that’ll give me child support payments for the other two.” That’s not necessarily so. We use child support worksheets and a lot of times those child support calculations need to be re-figured as each child turns 19.

You’re not allowed to unilaterally change a child support amount, unless there’s a written, signed agreement of the parties or a court order. So it requires a motion to modify when each child turns 19, except when there’s only one child and that child has turned 19. Then you can terminate child support. I’ve had a lot of cases in the past where the parent who is paying child support has the money taken out of their pay check, and the other parent, even though the children turned 19, refuses to allow the garnishment or the wage assignment to be canceled and we have to go to court and file a motion.

By the time we get to court, often time the parent has overpaid in child support. Meaning the parent who’s received the child support will owe money back to the parent who’s been paying it.

This is another situation where an experienced family law attorney should know the law and should be able to help you navigate through the motion to modify or terminate child support when a child turns 19 years of age.

Recent Changes to Spousal Maintenance

This topic involves the changes to the spousal maintenance statute in Colorado. Colorado has a very unique statute that deals with spousal maintenance. It’s found in Colorado revised statute 14-10 114. And this statute was passed on January 01, 2014 to provide the court with advisory guidelines that take into consideration a number of factors in a court’s decision as to whether or not one party should receive spousal support from the other party. This law formally called those kinds of support payments alimony. In many states in the country it’s still called alimony, but in Colorado we call it spousal maintenance or spousal support.

As a result of Congress passing a massive tax bill in 2017, as of January 02, 2019 there will be an impact to the Colorado spousal maintenance statute. Under the way that the law is written now, spousal maintenance paid by one party to the other is considered to be a tax deduction to the spouse that’s paying spousal maintenance and must be declared as income to the spouse who receives the support payment.

As of January 02, 2019, that’s no longer going to be allowed. So, Colorado has a new law that will take into consideration the definitions of gross income of the parties in adjusting the spousal maintenance that must be paid if there is a ruling by the court or an agreement by the parties.

There’s two parts to spousal maintenance in every case that you need to consider. Does the spouse who is requesting spousal maintenance have a need? That’s called necessity, for economic support. And does the spouse that is being asked to pay spousal maintenance have the ability to pay?

So, there are a lot of factors that go into this including how debts are to be paid, how property has been divided, whether there is any income producing property to either party. It’s very wise to consult with a lawyer and possibly a CPA to see how this is going to impact you and your taxes.

The other thing that I want to emphasize is this: for marriages that are going through divorces in 2018, before the new law kicks in on January 01, 2019, if you have a signed written agreement as to the amount and duration of spousal maintenance and it is approved prior to January 01, 2019, then the spouse paying spousal maintenance will be allowed to claim the deduction for everything that is paid in spousal maintenance and the spouse who is receiving the maintenance will be required to report it as income. As long as it’s done before January 02, 2019.

Filing an Emergency Motion

I want to talk to you a little bit about emergency motions and what happens when a parent files an emergency motion. Primarily, these emergency motions are about custody and visitation. So I want to give you a couple examples as to what the law says.

The most common type of emergency motion is one where a parent asks the court to suspend or restrict the other parent’s parenting time. A lot of people say, “Can a judge do that? Can a judge restrict my parenting time?” The answer is yes. A court has the authority to do that. Primarily, what you see in those cases is that the child’s physical, emotional, or developmental well-being has been significantly impaired by a parent’s behavior or conduct.

I can give you quite a few examples of that, but the one that most comes to mind is a situation where a parent presents a danger to a child. This is called the Endangerment Standard. When this happens, of course, a motion has to be filed, and the court, upon receipt of the motion, will set the matter for an emergency hearing. Until the emergency hearing is set, parenting time will be suspended. That means that there won’t be contact between the parent who has visitation and the children pending the hearing.

At the hearing, the court has to go through a test to see if endangerment exists. Is the child’s safety at issue because of a parent’s drinking of alcohol in excess, drug addiction, or other kinds of behavior like domestic violence perpetrated against the other parent? If the court finds that a child is being endangered, that there is a safety issue of some kind, then the court can set the parameters for visitation.

The Recommended Dos and Don’ts in Your Divorce or Custody Case

Experienced lawyers, who exclusively practice Family Law, know that clients can become their own worst enemy. These kinds of behaviors may not be intentional, but nonetheless, actions that seem harmless can become much more harmful while in the “divorce court.”

Do not rely on your spouse for information or for you to be treated in an honest fashion once the divorce or custody action commences. As an example, many folks do not have written signed agreements and operate by trusting each other to be, “fair and honest”. It is my experience, that once a Family Law case makes its way into the court system, parties tend to take positions and postures that are like prized fighters before the main event. The information you once had no problem accessing, may be cut off. Confusion as to what to do and how to get that kind of information may become a real challenge. In a recent case, when the wife filed for divorce and custody of the parties’ children, she decided that because she had always paid all of the bills and had all of the banking information, that it was no longer necessary for her to share that information with her husband. In effect, the husband was cut off from the banking information that was held jointly because the wife had changed all of the essential passwords. Whenever the client was told he had to pay a bill that was due, he immediately suspected that his wife was not being honest with him and refused to give her access to the monies she had always had to pay the monthly bills. It is easy to see how this kind of thing can escalate quickly and cause more stress and friction than necessary. To get ahead of this problem, before a divorce is filed, the parties should talk and discuss their monthly bills and expenses in advance and figure out what is needed to keep those bills current. It is a good idea to have a list of the monthly bills and the amounts due before you and your spouse get into any “heated exchanges.”

Do not use Social Media, of any kind, while you and your spouse are in the process of any pending Family Law matters. It is not good idea for you or your spouse to allow the public or your spouse or the parent of your children to have access to recent Facebook postings or other social media sites. A client of mine sent me copies of postings that showed his wife with her new boyfriend on their recent cruise. His wife told him that she was going away with her sister for a wedding, only to find out that this was an untruth. He figured if she is lying about a relationship, she really could not be trusted about anything else and demanded full custody of the child, because he believed it showed that she was unfaithful and a liar. Things in this case quickly got out of hand for both parties.

You must be certain to get the best legal advice possible! This is no time for you to try to handle your Family Law case on your own. Every Divorce and Every Child Custody case is different. If you rely on a friend for advice because that friend went through what you are going through, you are going to get, “BAD ADVICE”. The specific factual details of your case are not going to be the same as your friend’s case, and the strategies that your friend used, most likely will not work in your case. I have had clients come to me and tell me that before I was hired, they received advice from family, from their hair salon, from their co-workers, and a variety of other sources. Getting advice from anyone other than a respected extremely qualified Family Law Attorney, is a very bad idea, and can jeopardize your case.
Do not rely on the Internet for legal advice. There may be hundreds of articles regarding cases similar to yours, but keep in mind, general information from any website is not the kind of information that will prove helpful to you during a Family Law litigation. The websites that provide the public with information may not even be authored by a lawyer and in most situations could be misleading or confusing.

When you are considering any action in a Family Law matter, keep detailed records and notes. Do not discard important text and email communications with your partner that may be found to be helpful in the future. Do not allow the records or your notes to be shared with anyone but your lawyer. If you allow friends or your romantic interests to have access to these kinds or records you may destroy the “confidentiality” provisions of the Attorney/Client privilege. You may be able to preserve invaluable evidence that proves your theory of the case, or can be used to impeach the other party, by carefully keeping and not deleting communications. An experienced lawyer should always be looking towards the day when the lawyer must appear in court and assemble the kind of evidence that supports a client’s claim or defense. Lawyers who are trial litigators, in Family Law, understand the value of critical evidence and will know how to introduce and use the evidence in court that you may not understand.

If you have children and you and your spouse or former spouse are moving through the legal process with a custody matter or a modification issue, do not involve the children in any way. Children are meant to be shielded from their parent’s legal disputes. Judges do not appreciate hearing that parents have shared with the children, the facts or important events in the legal proceeding. These kinds of communications, with children, can result in a judge believing that the only purpose of involving the children was to negatively impact the other parent. An example of this occurred when my client’s ex-husband consistently told the children that the reason he was out of money was because their mother was always taking him back to court for more child support. Involving kids in their parent’s legal disputes is NEVER a good idea.

By obtaining advice from the right kind of Family Law Attorney, you can avoid stepping on the minefields that may result in sabotaging your case, now and in the future!

How to Prepare for Your Testimony in Your Family Law Case

It is always important to be fully prepared whenever you are plan to appear in Court in your Family Law case. Preparation is the key. I spend many hours getting ready for these kinds of hearings and I want my clients to be fully prepared as well. You need to know that your testimony is, “evidence” in your case and the judge will decide if you have been truthful. The judge will give weight to what you have said, based on the judge’s interpretation of your credibility as it relates to the disputed issues. I have observed hundreds of witnesses testify and the single most important factor for any witness is that they present their testimony in an honest and forthright manner.

Parents are not usually “expert” witnesses, so when they testify, they are doing so as “Lay Witnesses.” The Colorado Rules of Evidence define what kind of testimony can be given by “Lay Witnesses”. As an example, in a parenting modification case or a divorce case involving children, an experienced lawyer may want to ask the client their opinion about the childrens’ behaviors when they return from seeing the other parent. Lay witnesses are permitted to give their opinions, but those opinions may have to be “qualified” or a “foundation” established that satisfies the Court.

Remember, that in all Family Law cases there will not be a jury listening to your testimony. Judges, not Juries, listen to the evidence. Judges must decide as the, “trier of fact” whether a witness is “credible”. Credibility goes to the heart of whether or not a judge will believe the testimony and why the judge should rule one way or the other. When a parent testifies in an untruthful manner, it is usually devastating to that parent’s theory of the case or what that individual is ultimately asking the judge to do. Parents, who have poor memories, testify about facts that are inconsistent with the other evidence in the case or who acknowledge a substance abuse or alcohol problem, are not considered “credible” in the eyes of the law and in most cases that kind of testimony is going to be disregarded.

If you are one of our clients, or a family member of one of our clients, and I know that testimony before a judge is going to be needed, we will do many things to prepare you for your testimony well in advance of your hearing and expected testimony, so that you will know what questions or subject matter is expected. Another reason to practice with your lawyer is so that you know what to expect if the judge or the other attorney questions you. In Family Law matters, the most common hearings where testimony is likely needed, occurs at a Temporary Orders Hearing or a Contested Motions or Permanent Orders Hearing. When I prepare for these kinds of Hearings, I can tell you what kind of critical information must be presented to achieve success. As a trial attorney, I can tell whenever a lawyer has not prepared with their clients or witnesses, as it becomes obvious to me. More importantly, if your lawyer does not rehearse with you, you are going to be at severe disadvantage when you appear in front of the judge. Lawyers who do not have trial experience are not the ‘right’ lawyers for family law cases.

Here is a checklist to keep in mind that will assist you in advance of your testimony before a judge in a disputed Family Law Hearing:

  1. Obtain knowledge regarding the location of the courthouse, travel time, parking locations and the actual courtroom where you are expected to appear.
  2. Make sure you meet your lawyer to prepare for your testimony, well in advance of any Hearing.
  3. Know the time that you are expected to be in court and meet your lawyer at the courtroom, which should be well in advance of the starting time for your hearing.
  4. Become knowledgeable about the nature of the pending disputes, your positions and those of the other party. You should be prepared to not only state what you want to see happen, but prepared to answer questions about what you know about the other party’s positions. You should study your notes, text messages, diaries, or anything else that will refresh your memory of events and help you. It is unlikely that a judge is going to allow you to read from a prepared script or your notes, so becoming comfortable with all of the facts and your disputes with the other party, is extremely important.
  5. Become very familiar with the “Exhibits” in your case or the documents that both you and the other party have filed with the court. In most Family Law cases, these documents include Sworn Financial Statements, pay records, tax returns, banking and debt statements, etc. You and your lawyer should go over these kinds of documents to help you prepare for your testimony. In my office, whenever a client is expected to testify, I will provide the client with a file of those documents so that the client can have ample time to read all such materials before the court hearing.
  6. Make an impression with the judge by what you wear and how you look. Ultimately, the way you dress for court will tell the judge that you are taking this matter seriously or not. As the Family Law Advocate for the American Bar Association, recently wrote, “You should dress and groom yourself as though you are preparing for an [important] job interview.”
  7. Always be polite, respectful, civil and courteous when answering questions from your lawyer, the other lawyer, or in some situations where the other party does not have a lawyer, when responding to questions directly from the other party. Do not use derogatory language in describing the other party or when explaining yourself. Eye contact is
    also important as it speaks to your credibility.
  8. Be aware that in the courtroom and even in the hallways, that how you act and what somebody may have overheard you say, may come back to haunt you when you testify.
  9. While it is not uncommon for family or friends to sit in the courtroom during Family Law hearings, you should talk to those people who plan on coming to court, and tell them that they need to not show emotion, nod their heads during testimony or in any way comment about what is taking place during a hearing.
  10. The more experience your lawyer has in preparing clients and witnesses for hearings, the more that kind of experience will directly assist you. In fact, my clients all tell me, after a hearing has been concluded and the judge has ruled, that by rehearsing their testimony beforehand, they became less stressed out over the case and more comfortable. A confident and well-prepared witness always maximizes the chances of success when appearing before the judge.