What Does “Best Interests of the Child” Mean?

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.

Questions About Attorney Conduct

Lots of clients call here and ask questions about, “What do I do when I’ve had an attorney working on my case and the attorney is not returning my phone calls, not sending me email responses, and I have no idea what’s going on in my case?” It could be a divorce case, a legal separation, a child custody case, what have you.

My response to that is this. Whenever you’re hiring an attorney in any of these kinds of matters, you need to be comfortable with your lawyer, and you need to discuss, going into the case, how that lawyer operates. Is the lawyer going to return emails promptly? What happens if the lawyer is in court or mediation? How will I get my questions answered?

In this office, we offer a 24/7 phone line, and I have very experienced staff and a paralegal who’s been involved in family cases for many, many years, who will answer a lot of the questions that clients have while I’m in court or unavailable, and if you are not getting the proper service from your attorney, or your attorney is telling you what to do rather than you telling your attorney what you want to see happen, maybe it’s time to consider changing lawyers to someone you’re more comfortable with or can work with.

If you are in that situation and you are looking to hire an attorney to jump in and take over your case, remember to bring as many of the court documents with you when you see the new lawyer, so that that lawyer is not surprised by any of the litigation history or upcoming court dates.

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

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

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?

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.

Information About Attorney Conduct

Lots of clients ask questions about, “What do I do when I’ve had an attorney working on my case and the attorney is not returning my phone calls, not sending me email responses, and I have no idea what’s going on in my case?” It could be a divorce case, a legal separation, a child custody case, what have you.

My response to that is this. Whenever you’re hiring an attorney in any of these kinds of matters, you need to be comfortable with your lawyer, and you need to discuss, going into the case, how that lawyer operates. Is the lawyer going to return emails promptly? What happens if the lawyer is in court or mediation? How will I get my questions answered?

At The Law Office of Gordon N. Shayne, we offer a 24/7 phone line, and I have very experienced staff and a paralegal who’s been involved in family cases for many, many years, who will answer a lot of the questions that clients have while I’m in court or unavailable, and if you are not getting the proper service from your attorney, or your attorney is telling you what to do rather than you telling your attorney what you want to see happen, maybe it’s time to consider changing lawyers to someone you’re more comfortable with or can work with.

If you are in that situation and you are looking to hire an attorney to jump in and take over your case, remember to bring as many of the court documents with you when you see the new lawyer, so that that lawyer is not surprised by any of the litigation history or upcoming court dates.

Contact us today for more infomation or to schedule a free consultation.

Abduction/Parental Kidnapping

A Child Abduction or Parental Kidnapping occurs when a parent violates a Court Order. Ordinarily, parents who have no court orders that define where the child lives and what kind of parenting time either parent has will not be impacted when a parent violates an informal agreement between the parties. This is why it is so important to have parenting agreements approved by a judge, so that if a parent violates the parenting agreement, the guilty parent can be held responsible per the orders of the court.

There are specific state and federal laws that apply to child abductions and parental kidnapping: Uniform Child Custody Judicial Enforcement Act; International Parental Kidnapping Crime Act; The Fugitive Felon Act; Hague Convention on the Civil Aspects of International Child Abduction; International Child Abduction Remedies Act, etc. A critical provision of federal law, concerning interstate and custody determinations and disputes, can be found in the Parental Kidnapping Prevention Act (PKPA). The applicable Colorado law is the Uniform Child Custody Jurisdiction Act (UCCJEA), which can be found in the Colorado Revised Statutes in Title 14.

Without orders from a judge, that spell out parenting time and other necessary provisions, a Colorado court will not be able to assist you if there is a child abduction or parental kidnapping. Here is an example: Beth and Tom have two (2) children, but were never married to one another. Beth and Tom never had any parenting orders of any kind from any court because as Beth always said, “they always agreed about the kids and got along.” Since the parents always got along, there were never any child support payments ordered. Tom was listed on both kid’s birth certificates and the parents always made decisions affecting the children, jointly. Beth had always been the primary parent while she lived in Denver and Tom had parenting time every other weekend from Fridays after school until he dropped the kids off at school on Monday mornings. When the children reached the age of 6 and 8, Beth met Bob, who was living and working in Arizona. Bob and Beth became involved in a serious relationship and Bob invited Beth and the kids to move in with him, in his Flagstaff house, while the kids were on their Christmas break from school. When Tom called the kids to wish them a Merry Christmas, one of the children told him that they had packed up all of their things and were now living in Arizona. When Tom found out that his kids were living somewhere else, he contacted Beth who refused to respond to phone calls, text messages or Tom’s emails. Later that day, Tom made a 911 call to the Denver Police Department to report that his kids had been abducted. The police officer met with Tom and said that there was nothing that they could do because this was a civil matter and police only investigated crimes. The officer told Tom he should get a real good custody lawyer. The following day, Tom made an appointment to immediately see a Family Law Attorney, and was told that since no parenting orders existed, the only thing that could be done was for him to file an Allocation of Parental Responsibilities case in the District Court where the children had last lived in Colorado. Tom’s lawyer also told him that Colorado was the children’s “Home State,” and that he would have to file an action before he could expect to have his parenting rights enforced. It was at that moment that Tom found out that his plans to take the children skiing in Vail over the second half of their Christmas break was not going to happen. Because of the congestion of the court’s docket, Tom had to wait more than 6 weeks to have a hearing before the judge for a Temporary Orders hearing. At the Temporary Orders hearing, the judge noted Beth’s role as the children’s primary parent since their birth, and allowed the children to stay in Arizona, thus making Tom’s every other weekend parenting time, moot. Tom was not happy with this recent turn of events and ultimately ran out of money to fight for custody and agreed to a Parenting Plan with Beth for shared parenting time every year over Thanksgiving, Christmas, spring break and summers. Additionally, Tom was ordered to pay Child Support to Beth.

An experienced Colorado Family Law Attorney should possess the kind of specialized legal and trial skills and knowledge to give parents appropriate legal advice. The list of parental responsibilities is far greater than just determining how holidays will be divided.

Another important parenting abduction and kidnapping situation occurs when a parent has custody orders in another state, and leaves that state. In some circumstances the court, which originally decided custody and parenting, will no longer enforce those orders because the children have been away from that state for such an extended time. When a court will not take action to enforce its parenting orders and to prevent the children from being taken to another state, it is important to talk to a Family Law Attorney regarding the registration of the court orders from the originating state. In Colorado, this is a process that must begin with the registration of the foreign decree and foreign parenting orders of that other state.

There are many situations that occur when children are wrongfully taken from one or both parents, both throughout the United States and internationally. Some of these cases involve immigration laws and require that kind of specific expertise.

The legal consequences of child custody litigation are often times extremely complex and difficult. The parties become engaged in a tug of war to see which one has the fight to prevail and at what cost. In a recent case that I handled, a parent who had the child for her summer parenting time visit, decided to keep the child in Colorado instead of returning the child to her father who had parenting orders in Texas. Not only did the Colorado court allow for the emergency registration of the Texas court orders, but the court also conducted an emergency hearing before ultimately ruling that the child be turned over to the father within one hour after the hearing had concluded. With specific court orders from another state court judge in the U.S., it’s clear to see that the court’s view of children being taken or withheld against orders of another court are treated in an extremely serious manner.

If you feel that your children have been abducted or kidnapped, contrary to a court order, contact me immediately so we can discuss your options and a legal strategy that can be used to protect you and your children. Contact Shayne Law if you have any questions.