UCCJEA and a Child’s Home State

In Colorado and most of the 50 states regarding the definition of a child’s home state is dictated by the Uniform Child Custody Judicial Enforcement Act. This act says that a child’s home state is where the child has lived for at least 182 days prior to any court action.

If a parent gets proper orders or permission from the other parent to leave Colorado with a child or children, the question becomes what happens next? A parent can register the case in the child’s new state. An example would be if the parents went through a divorce in Colorado and the father agreed that he would have parenting time, but the mother would be the primary parent and wishes to relocate to the state of Georgia to be closer to her family, and the father has consented to that, and the judge has issued an order approving that.

After six months passes from the time that the orders were entered in Colorado, the mother may be able to make application in the state of Georgia to transfer the case from Colorado to Georgia, arguing that it’s more convenient to have the Georgia court address post-decree disputes, custody disputes and visitation disputes in Georgia now that the children have been away.

By the same token, let’s assume that parents have no custody orders and they’ve just moved to Colorado. Before they can file any action in the state of Colorado, the children have to be here for 182 consecutive days before it is appropriate to file any action here.

There are some exceptions to that in cases where there are certain emergencies and that’s why it’s always good to consult with a lawyer regarding the filing of custody actions in Colorado when it’s questionable as to how long the children have been here and what proof you have that Colorado is the children’s home state.

How to Hire the Best Family Law Attorney

I’d like to talk about the importance of hiring a family law attorney in your divorce or child custody case, or post-decree motion that you have in family court in the state of Colorado.

Unlike criminal law where an attorney can be appointed by the court to represent you, in family law there is no such law or requirement. This means that it’ll be your responsibility to find your own lawyer. Hiring a lawyer is one of the most important decisions that you’re going to make in whatever family law matter you have.

When you’re sitting across from the lawyer during your interview, you should ask important questions about the lawyer’s experience. Is he a member of any specialized sections of the bar, such as the American Bar Association Family Law Section or the Colorado Bar Family Law Section? Does he regularly attend and go to seminars and is updated on the law?

Overall, you should be confident this lawyer has a lot of courtroom experience, knows how to deal with evidence, and most importantly, when he files your case and he is representing you. You should have a feeling that the lawyer has your back, that this lawyer, who is specially trained and is going to be an advocate for you, is going to give you the kind of legal advice that is going to assist you through your case and achieve the goals that you have established.

Colorado Ruling Allows Restraining Orders After Abuse From Another State

A recent Colorado Supreme Court ruling allows for a Colorado court to issue a restraining order when the actions of domestic or sexual abuse occurred in another state. This is a very important ruling that protects victims who may be going through a divorce or child custody case in Colorado. Often times, the victim of domestic violence or sexual assault has fled another state to avoid the perpetrator and risk future harm. A restraining order or civil protective order seeks to prevent the perpetrator away from the victim at home or place of business. A violation of a civil protective order may be a crime under certain circumstances. Since Colorado law does not allow a private attorney the right to file a restraining order on behalf of a client, it is extremely important to know how each county allows for a victim to seek such relief.

When a parent has been the victim of domestic abuse, whether that is physical, emotional or even financial, it may have tremendous impact on what a judge can do in a child custody hearing. As an example, if a judge finds that a parent has committed domestic abuse or domestic violence, the court has discretion to order that the abused parent be granted “sole decision making.” Sole decision-making would allow the victimized parent to make critical decisions as to children’s medical, education and spiritual upbringing, without having to make these kinds of decisions jointly with the parent who is deemed, “abusive.” More importantly, whenever there is evidence of domestic or sexual abuse, a court can limit or restrict access to children of the relationship. A highly skilled and thorough Family Law Attorney who specializes in these kinds of cases can conduct an evaluation of the evidence and better inform clients of the options that are available. Because most of these cases result in contested hearings before a judge in court, it is critical to form a strong persuasive legal strategy so that a domestic violence victim receives not only the best advice, but also a plan of attack to protect the victims in an impactful and effective manner. With over 37 years of experience in these kinds of matters, Gordon Shayne, can provide aggressive and successful legal representation.

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.

How long does it take to get a Divorce In Colorado?

Lots of folks call our office and they ask, “How long is it going to take to get a divorce in Colorado?” Generally, divorce cases in Colorado are going to depend upon the jurisdiction that you’re in. If you’re in El Paso County, it’s probably within a timeframe of four to seven to eight months before you’ll be able to get a hearing on a contested divorce. Let me tell you what that is. A contested divorce or legal separation means that the parties do not have total agreements on all issues.

Basically, that means this. Under our law, if the parties have an agreement of all financial disputes, the division of property, debts, a spousal support, then they need to prepare a separation agreement in writing after financial disclosures are completed. If the parties do that and there are no children, they can easily obtain an uncontested dissolution of marriage hearing.

If the parties have children, the court is going to expect them to have a parenting plan in addition to a separation agreement that covers the children. This means to the court that all disputed issues have been resolved and the court will schedule an uncontested hearing. Uncontested hearing will allow you to get to court faster and will use up less time and money or expenses in attorney’s fees when all disputed issues are resolved.

I believe that everyone who’s involved in one of these processes with the stress that’s involved, both dealing with financial issues and the children, should always try to reach total agreements both with the financial disputes and the parenting disputes. That is something that I think that the courts recognize as well.

What Happens To 401k/Retirement Accounts In A Divorce?

I want to discuss with you what happens with a retirement account or a 401k account and how that may be involved in your divorce or legal separation or even in post-decree matter.

A post-decree matter means that you’ve already gone to court. You have had a judge enter a decree or a legal separation or a decree of dissolution of marriage, and in that decree of dissolution of marriage, one of the parties or both of the parties had IRAs and retirement counts or a 401k that had to be divided. And in a post-decree case, most often what we see is that somebody has not done what they’re supposed to do.

As an example, let’s say that IRA accounts were to be divided 50/50 in the divorce and husband had a $200,000 IRA account and he was supposed to give wife half, or 100,000 of that and he didn’t do that. And you want to go back to court to enforce those orders. That’s a post-decree issue.

In the typical divorce case, where there are 401k or retirement accounts, the court is going to divide those accounts down the middle. That’s pretty much what you can expect. Even though there is no law that says that the court has to divide everything 50/50, generally speaking, a marriage of any kind of length, four or five, six years or longer, a court is going to take into account who’s contributed to the 401k and whether or not that was a contribution made over the course of the marriage, and that’s how it’s going to be divided.

Differences Between A Military Divorce Scenario Versus A Standard Type Of Divorce

What are the differences between a military divorce scenario versus a standard type of divorce that’s filed, and perhaps some of the unique differences?

Of course, everyone knows that there is no such thing as obtaining a divorce or legal separation decree from a military court. That’s not something that’s covered by the Military Code of Justice. The states, individual states, all 50 states in the United States, have divorce laws, and if residency requirements are met, then the state where the parties live will have jurisdiction to move forward with what they call a civilian divorce.

In the military, as an example, there are rules that apply to family separation. In the civilian court, the rules refer to spousal support and child support. Sometimes in those military cases, the military authorities will order a soldier to pay family separation support before the civilian court ever enters any of its orders for child support or maintenance.

Additionally, when you are dealing with housing, your lawyer should be familiar with what the rules are for housing, how housing is paid, whether it’s base housing or off-post housing, and whether there’s a housing allowance that may be pertinent to the civilian divorce case. In all these kinds of cases, an attorney with lots of experience dealing with military matters, military questions of income, base pay, and other kinds of allowances is going to be important to know.

Preparing For An Attorney Consultation

We offer free consults in this office to potential clients who are looking to hire an attorney. Obviously, we can’t give free advice to everyone, but for people that wish to come in and me with us and get an idea of what is expected and what kind of a case they’re dealing with, whether it’s a divorce, a legal separation, a post-decree modification of orders, or a parental responsibilities case, I believe that it’s important to have some preparation before you meet and have a discussion with an attorney that you’re interviewing.

As an example, if you’re meeting with an attorney to discuss a divorce, you should have a pretty good idea of what the financial issues are in your case and be prepared. You should take a look at the tax returns. You should take a look at the investments and the retirement accounts. You should have an idea of what you house is valued at. What the mortgage payoff would be. Are the cars paid off or are there loans? What about insurance questions. Is there going to be health insurance? These are the kinds of things that you can look at before you have a meeting with the attorney so that you can have an intelligent discussion and get your questions answered during your consultation.

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.