Recent trends in Child Custody cases show that Fathers are more and more likely to be awarded equal parenting time, in custody and divorce case. I have found that Colorado judges are extremely fair when deciding this issue. The main focus for the Court in any dispute involving custody or parenting time centers on what is best for the children. How will the children adapt to the situation and how will any shared custody arrangement be impacted when parents do not live near one another. Read more
The idea of “family” is rapidly changing. “Family” has been traditionally understood as the nuclear family—two heterosexual married partners with shared children. Today, families include single-parent households, blended families from subsequent marriages and same-sex partner households. (Colorado Domestic Relations laws apply to both same-sex and heterosexual parents when determining parental rights and responsibilities.) Now, we’re even seeing the trend of “family” being defined independent of marriage.
Many couples today are choosing not to get married, but they are sharing households and having children together, creating what otherwise looks like a traditional nuclear family. The problem is that without the legal bond of marriage, the rights of parents are not clearly defined.
Enforcing Parents’ Rights
For most unmarried parents whose relationship is intact, the lack of legally defined parents’ rights does not present an issue. However, in the event that the relationship dissolves and custody disputes arise, the absence of clearly defined parents’ rights can limit what law enforcement and the Colorado family court system can do to intervene.
For example, if an unmarried couple with children breaks up, and one parent decides to move out of state, there is little legal recourse for the parent who remains in Colorado. If parents have a verbal agreement that a child will spend weekends with one parent and live with the other during the week and the weekend parent does not return the child at the agreed upon time or location, the other parent may call the police. However, the police cannot do anything because there are no court orders to enforce.
In order to legally define parental rights upon the dissolution of a relationship of an unmarried couple, the parties must open an Allocation of Parents’ Rights (APR) case.
Allocation of Parents’ Rights
An Allocation of Parents’ Rights (APR) case is nearly identical to a child custody case that is part of a divorce. However, parents do not have to wait until a relationship dissolves to open an APR case. Unmarried parents may go through the process of legally defining parents’ rights at any time. (By sharing a lawyer and establishing a parenting plan on which they already agree, the process is more time-efficient and cost-effective). Regardless of when the case is opened—while the relationship is intact or upon dissolving—the case will end with orders outlining child support and how parenting time and decision making will be divided and/or shared. Read more
The impression across the nation is that family courts favor the mother in child custody cases. This impression also exists in our state of Colorado. The reality, however, is that there is no indication in the Colorado family law statutes to support the misnomer that one parent is favored over another. In other words, there is no such thing as “Father’s Rights” or “Mother’s Rights” in Colorado; it is the child’s best interests that the Courts consider.
Given this fact, it is up to you to retain a Colorado family attorney who can make certain that the Courts understand that your child’s best interests are to have you involved in your child’s life—to have ample parenting time, be included in the decision making processes regarding his/her health and well-being and to be a vital parent in your child’s day-to-day life.
The Law is Gender-Neutral
Despite the endless advertising by some law firms about their ability to fight for Father’s Rights or Mother’s Rights, Colorado does not favor mothers over fathers or vice versa. Colorado Statute §14-10-124 clearly states, “In determining parenting time or decision-making responsibilities, the court shall not presume that any person is better able to serve the best interests of the child because of that person’s sex.” Ideally, a child should continue to have a relationship and have his/her physical, mental and emotional needs met by both parents after a separation or divorce or allocation of parental rights; hence, the statute’s opening declaration “urges parents to share the rights and responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents.”
Best Interest Statutes
The law clearly states a preference for shared parenting responsibility. However, with parents’ emotions running high during a divorce or custody case, parents cannot always be trusted to “encourage the love, affection and contact between children” and the “ex”. In some cases, a relationship and continued contact with one parent may actually put the child at risk. That is why, in lieu of a mutually acceptable parenting plan, the Court must make a custody determination. To do so, a number of factors are considered:
- The wishes of the child’s parents as to parenting time
- The wishes of the child if he/she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule
- The interaction and interrelationship of the child with his/her parents, his/her siblings, and any other person who may significantly affect the child’s best interests
- The child’s adjustment to his or her home, school and community
- The mental and physical health of all individuals involved; a disability alone shall not be a basis to deny or restrict parenting time
- The ability of the parties to encourage the sharing of love, affection and contact between the child and the other party
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment and mutual support;
- The physical proximity of the parties to each other as this relates to the practical considerations of parenting time
- The ability of each party to place the needs of the child ahead of his or her own needs
Contact and a continued relationship with both parents is not always deemed in the child’s best interest. Custody may be denied or restricted if evidence supports charges of child abuse (as defined by §18-6-401, C.R.S. or any other state’s law) or domestic violence.
The Human Factor
The law and the “best interest” criteria outlined in it are unbiased. The judges who make custody determinations based on the criteria stated above are not always so impartial. That is not to say that judges favor mothers over fathers or vice versa. What it means is that you need an experienced Colorado family law attorney who can present a strong and convincing case that your custody of your child is in your child’s best interests.
Every child custody situation is different. There is no cut-and-dried way to determine if a child will adjust better to life with one parent in one community or with the other parent miles away; if a parent’s past behavior is really indicative of his/her ability to encourage a loving relationship and contact with the other parent, etc. These matters are up for interpretation, and it’s up to your lawyer to present meaningful evidence in a way that demonstrates to the judge that it is in your child’s best interests to have you actively involved in his/her life.
What evidence is meaningful and how it should be presented, too, are gray areas. A seasoned attorney who knows judges’ reputations, thoroughly understands family law statutes, is a master at strategies related to domestic relations cases and recognizes other contextual factors relevant to the case can better assess what needs to be presented. A lawyer unfamiliar with Colorado family law may not know that a child can be interviewed privately in a judge’s chambers and that the child’s age is not the sole determining factor as to whether or not he/she is considered “sufficiently mature.” Likewise, an inexperienced attorney may not recognize issues relevant to custody determinations involving military parents, issues that affect many Colorado Springs families.
To make the strongest case, you also need an experienced family law attorney who focuses on what really matter’s—your child’s best interest. Colorado family law does not outline Mother’s Rights or Father’s Rights. However, Colorado family law does outline the criteria to be used to assess what is in your child’s best interest. Your lawyer should focus on presenting evidence that shows you meet those criteria, not on trying to prove your gender is a relevant factor.
To discuss your case with a dedicated Colorado family lawyer with over 34 years of legal experience, contact Gordon N. Shayne.
Disclaimer: The blogs posted on ShayneLaw.com are offered for informational purposes only. These blogs are not a solicitation for legal business and should not be construed as providing any legal advice or legal opinions as to any specific fact or circumstance. Specific legal issues, concerns and conditions always require the advice of an appropriate legal professional. To obtain legal advice or opinions about Colorado family law, personally consult with a licensed Colorado attorney.
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