What Does “Best Interests of the Child” Mean?

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This post will discuss Colorado’s law that pertains to parenting and to the best interest of the children and questions that are asked about whether or not the law favors mothers over fathers or fathers over mothers. The best interest statute in Colorado was really crafted to not play any favorites with one gender or the other, and the statute itself, which is Colorado Revised Statute 14-10-124 recognizes that children should have both parents involved in their lives regardless of gender. That doesn’t mean that there are circumstances that would give a father more parenting time than a mother or vice versa, but is Colorado a state that favors fathers over mothers or mothers over fathers? I think the clear answer is no, it does not.

It’s always important to talk to an attorney who’s been doing these cases for a very long time before you step into the courtroom and have an unrealistic expectation that because you’re a mom or because you’re a dad, you’re going to get preferential treatment or more parenting time than the other parent, and I think it’s important to understand that the law doesn’t play favorites. What it does is say that children are entitled to have both parents involved in their lives, involved in their decisions, and equal parenting time whenever possible.

What Kind Of Evidence Do I Need That The Other Parent Is A Perpetrator of Domestic Abuse, or Has An Alcohol or Drug Problem?

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Often times clients will ask me, “What kind of evidence do I need that the other parent is a perpetrator of domestic abuse, or has an alcohol or drug problem?” Well usually that means that there must be some sort of objective evidence. In other words, you just can’t come to court and say I believe the other parent has a meth problem, or I believe the other parent has an alcohol problem. You need to have some independent evidence of that.

Like what? Well it usually involves maybe a conviction for DUI, a drug possession situation, photographs or evidence independently that there were drugs in the house, that a parent left when children there.

The other kinds of evidence that is important would be if a parent is saying that the other parent is dangerous, because they have an anger or domestic violence problem. Is the number calls that the police have responded to the house, or home where the family has lived. You would get the police reports, or the police call reports to show the number of calls, and how often the police have come. Has there been a conviction for harassment or domestic violence?

These are critical factors for the court in any kind of custody case. You’ll find that a lawyer who has a lot of experience in taking these cases to court and appearing in front of the judge, is going to know and be able to tell you what kind of evidence is really going to be significant that a court will rely on.

What To Do When A Child Removed or Taken Across State Lines

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What you should do when you have child custody orders from another state, and let’s say that the parent who has visitation is here in Colorado and the other parent is not returning the child. What do I do then?

You’ll find that the police here in Colorado are not going to act on another court order from another state unless a Colorado judge has authorized the police to do something.

We’ve been very successful in getting children back to their lawful custodial parent when this happens. The process involves registering a foreign decree, that’s what it’s called, from another state into Colorado so that a Colorado judge can take what they call “judicial notice” of the child custody orders and enter orders for the police to assist you in getting the child back.

It’s a two-step process. Step one is to register the foreign decree from the other state and, two, to seek the Colorado courts ruling that would allow you to use law enforcement in the state to help you get the child back.

How do I get my child back from the other parent when I don’t have any court orders?

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Today I want to discuss with you a frequently asked question that parents raise, and that is, “How do I get my child back from the other parent when I don’t have any court orders?” Typically what happens is that if parents are married, they’re going to file a divorce action, and the court’s going to then support the orders in the divorce, but when parents aren’t married, there’s an allocation of parental responsibilities action that has to be filed. If you have no court orders entered, and let’s just say that the other parent and you have an agreement where you’re going to share the parenting time and that other parent says, “Well I decided that we’re going to move to Denver and I’m going to keep the child.” What do you do? No court orders.

My advice is that you immediately seek to file the petition. It’s called a petition for allocation of parental responsibilities, so that a judge can establish some orders because without court orders, you’re not going to be able to have a court get a child back into your care or shared parenting care. I want to discuss with you what parental kidnapping or an abduction is. In order to establish that there’s been parental kidnapping or an abduction, there must be some sort of legal action that’s been filed, preferably a court order is in place, or a summons. Let me tell you what that is.

A summons is what would be served on the parties. Both parties would be bound by a summons and it states that a child cannot be removed from the state of Colorado once an action is filed. What this means is that if you had filed the divorce case and you have served the other party, or you filed a child custody case, like a parental responsibilities action, and you’ve served the other party, you’re going to have the process server serve them with a summons that includes an automatic injunction that prohibits that other parent from taking the child away from Colorado without a court order. A parental kidnapping case or an abduction case means that a parent has violated that court order. A violation of that court order means that you could get attorney’s fees against the other parent, or sanctions against that other parent. The police typically are not going to act unless a judge in Colorado has issued an order saying that a parent has violated a lawful Colorado order that a child not be kidnapped, removed or abducted.

One other important feature to mention. An abduction of the child is actually two things. The wrongful taking of the child. Let’s suppose you have parenting orders and it says every other weekend, and the other parent shows up and takes the child out of school on a Wednesday. That’s an abduction. Let’s say that the other parent is supposed to return the child to your care on Christmas Eve at 4:00 and that parent says, “Forget it. I’m not giving the child back.” That’s called a wrongful retention of a child and that’s also an abduction of a child and you should hire an attorney to immediately file an emergency motion to get the child back.

Custody Rights For Grand Parents/ Non-Parents

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Today I want to talk to you a little bit about grand parenting rights and circumstances where non-parents can have custody rights or parental responsibilities as they’re called in Colorado. Years ago, there was a case that was decided by the United States Supreme Court called Troxel versus Granville. You should look it up and read that case. It’s a very interesting case which says that the Supreme Court said that parents have a fundamental liberty interest in the care and custody of their children, but there are exceptions.

What do you do when two parents have been involved in drug use for an extension of time and they’ve given the young children to one of the grandparents? Had a similar case like that in the last year where both parents were sent away to prison, one to a state prison, one to a federal prison and the grandparents were raising the children because the parents were unavailable and unable to raise the children. The law in the state of Colorado says that if that’s what is the situation, a grandparent or grandparents or non-parents can file a petition for allocation of parental responsibilities to obtain the very same rights that a parent would have with respect to decision making and parenting time, holiday parenting time as would parents as if parents had filed the case.

This gives grandparents custody rights. Oftentimes in these cases, parents do no agree that the grandparents should have custody rights and that sets up a disputed legal case between grandparents and natural parents over the best interest of the children. You can also have non-parents like an aunt or an uncle or a friend who has had custody of children file a parental responsibilities case because of the amount of time that they’ve provided care for a child and how the biological parents have relinquished the care to a non-parent like an aunt or an uncle. So you should consult with an attorney to determine whether or not you as a grandparent or a non-parent have such rights and can file a parental responsibilities case.

Contact Shayne Law if you have any questions.

Grandparents Raising Grandchildren provides a plethora of resources for grandparents.

Establish Custody/ Parenting Time

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Often times clients will ask “How is a judge going to decide parenting time? What is parenting time?” Parenting time is established by a statute called the Best Interests Statute. It’s Colorado revised statute 14-10-124. If you take a look at the statute it’s got different parts to it. The first part you’ll see is a section that deals with decision making and that’s important for you to understand. If there’s been domestic violence in the relationship that can be established because if domestic violence has been established against one of the parents, then decision making will be awarded to the parent who is not the perpetrator of domestic violence.

The other way that parenting orders are entered is when the court considers all of the factors in the best interests statute and that would include parenting time, holidays and how the child is picked up and dropped off for parenting time and when that is to occur. A typical custody case involving either a divorce, a legal separation or an allocation of parental responsibilities is going to require the parties, the lawyers to get together. Go over the best interests statute and determine what kind of a parenting plan is fair to the children in the case.

It’s not something that’s fair to the parents, but it’s in the best interests of the children. It’s also not based upon fitness of parents, although that issue certainly is relevant for the court and an example of that is whether either parent has a mental illness or an emotional illness that may affect parenting or something like substance abuse or alcohol use, which is a factor in what the court does for parenting time.

Contact Shayne Law if you have any questions.