Custody Rights For Grandparents or Non-Parents In Colorado

Today I want to talk to you a little bit about grandparenting 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. It basically 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, so I want to talk to you a little bit about those.

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? I 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 not 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 uncle.

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.

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 To Establish Parenting Time

Oftentimes, clients will call and they say, “How is the judge going to decide parenting time? What is parenting time?” Parenting time is established by a statute called the best interest 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. That’s important for you to understand if there has 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 interest 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. So a typical custody case involving either a divorce, or legal separation, or an allocation of parental responsibilities is going to require the parties, the lawyers to get together, go over the best interest 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 interest of the children.

It’s also not based upon fitness of parents, although that issue certainly is relevant for the court. 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.

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.

Abduction/Parental Kidnapping In Colorado

I want to talk to you a little bit about what you should do when you have child custody orders from another state and let’s say that the parent who has visitation is in 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. So, we’ve been very successful in getting children back to their lawful custodial parent when this happens.

And 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.

So it’s a two step process. Step one is to register the Foreign Decree from the other state. And two, to seek the Colorado court’s ruling that would allow you to use law enforcement in the state to help you 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.

401k/ Retirement Accounts

Let’s discuss 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 a 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 accounts or a 401K that had to be divided. In a post-decree case, most often what we see is that somebody has not done what they’re supposed to do and has not followed the Orders of the Court. As an example, let’s say that the IRA accounts were to be divided 50/50 in the divorce; the husband had a $200,000 IRA account and he was supposed to give wife half or $100,000 as part of the 50/50 agreement. If the party did not follow the Orders of the Court and did not give the ordered share to the ex-wife, the remedy would be to go back to court to Enforce the Orders of the Court. Thus, this is a post-decree issue.

In the typical divorce case where there are 401K or retirement accounts, the court will divide those accounts down the middle. That’s pretty much what you can expect. Despite the fact that there is no law that says that the court has to divide everything 50/50, generally speaking, a marriage of any kind of length, 4 to 6 years, or longer, the 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. If the 401k or retirement account(s) were begun prior to the marriage, the court will consider the value of the account(s) at the time of the marriage and will calculate the division of these assets accordingly.

Avoiding a 10 percent tax penalty while rolling a spouse’s retirement account directly to an IRA is important to address and can be achieved when relying on an experienced attorney familiar with these issues. When the assets are allocated under the Qualified Domestic Relations Order or QDRO, a one-time opportunity for parties under the age of
59 ½ to withdraw money from their ex’s 401(k) or 403(b) without owing the normal 10% tax penalty exits.
So if you’ll be receiving your spouse’s retirement account and will need to tap it to pay for some unavoidable divorce expenses, you may want to make the withdrawal rather than doing a rollover. Otherwise, if you roll the money into an IRA then need to pull some out for divorce costs, you’ll be subject to the standard 10% early-withdrawal penalty if you’re under 59 1/2.

For those clients over the age of 50, who will need to live on savings for 20-30 years in retirement, it is recommended to take the time to assess their current and future cash flow to determine how much will be needed to live on in retirement. For these clients, we often recommend that an expert CPA be consulted to properly pave the road for a successful financial future.

Contact Shayne Law if you have any questions.

Best Interests of the Child

I want to talk to you a little bit today about 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.

Now, 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, and 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. 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.

Preparation For A 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 meet 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 your 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.

Contact Shayne Law if you have any questions.

Military Divorce Or A Civil Divorce

Today, I want to talk to you a little bit about 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. So, the 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 separation, family separation. In the civilian court, the rules refer to spousal support and child support. Sometimes in the 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.