Parental Responsibilities (a/k/a Child Custody)
Colorado has eliminated the concept of “child custody” and in its place substituted the concepts of “parenting time” and “decision making” for a child. It was thought that the term “custody” connoted a sense of ownership over the child and distracted from the proper focus which was the parents’ responsibilities to their children.
In Colorado, fit parents of a child who are not married are generally entitled to some amount of parenting time and decision-making responsibility regarding their child. If the parents cannot agree on the allocation between them of parenting time and decision making, the court will decide the issue based on the best interests of the child.
Who Can Bring a Parental Responsibilities Proceeding
The following persons may bring a parental responsibilities proceeding in court to determine the issues of parenting time and decision making regarding a child:
1. A parent filing for divorce or legal separation;
2. A parent filing for the allocation of parenting time and/or decision making;
3. A person other than the parent only if the child is not in the physical care of a parent;
4. A person other than a parent who has had physical care of a child for six months or more if such proceeding is commenced within six months of the termination of such physical care.
In arriving at the allocation of parenting time, the court must consider various factors with the ultimate goal of determining the best interest of the child. The factors the court must consider include the wishes of the parents, the wishes of the child if he or she is sufficiently mature, the relationship of the child to the parents and other persons who may affect the child’s best interest (such as siblings), the mental and physical health of all involved, whether one of the parties has been a perpetrator of child abuse, neglect, or domestic violence, and other factors.
In arriving at the allocation of parental responsibilities, the court may not consider the conduct of a party that does not affect that party’s relationship to the child, a party’s gender, a party’s request for genetic testing, or the fact that a party left the home because of an act or threatened act of domestic violence committed by the other party.
The court may allocate the decision-making responsibility for each issue affecting the child in whatever manner the court deems to be in the child’s best interest. Courts usually issue express orders regarding decision-making responsibility for major issues like health care, education and religion, and will often allocate to one of the parties the final authority to decide other major issues involving the child. Regardless of the allocation of decision-making responsibilities, either party may provide for the child’s emergency medical treatment if the circumstances warrant emergency medical treatment.
In arriving at the allocation of decision-making responsibility, the court must consider various factors with the ultimate goal of determining the best interest of the child. The factors the court must consider include the ability of the parties to cooperate and make decisions jointly, the parties’ ability as mutual decision makers to provide a positive relationship with the child, whether one of the parties has been a perpetrator of child abuse or neglect in which case it shall not be in the child’s best interest to allocate mutual decision-making regarding any issue over the other party’s objection, and whether one of the parties has been a perpetrator of spousal abuse in which case it shall not be in the child’s best interest to allocate mutual decision-making regarding any issue over the other party’s objection unless the court determines that the parties are able to make shared decisions about the child without physical confrontation and in a place and manner that is not a danger to the abused party or child.
Either party may submit a proposed parenting plan for the court’s consideration regarding parenting time and decision-making responsibilities. The court may adopt either party’s proposed parenting plan in whole or in part, or may formulate its own parenting plan, in its discretion.
Modification of Parenting Time
The court may modify an order granting or denying parenting time rights whenever such modification would be in the child’s best interest. However, the court may not restrict a parent’s parenting time unless the child’s physical or emotional health would be endangered absent the restriction. Whether a modification of parenting time rises to the level of a “restriction” of parenting time (and thus requires the court to utilize the endangerment standard as opposed to the best interest standard in determining whether to order the requested change in parenting time) is fact-specific to each case and may involve an inquiry into both the quantitative and the qualitative aspects of the proposed change to parenting time as well as the reasons advanced for the change.
The court may not modify a parenting time order that substantially changes the parenting time arrangements as well as the party with whom the child resides a majority of the time unless (1) the parties agree to the modification, (2) the child has been integrated into the home of the moving party with the consent of the other party, or (3) the child’s present environment endangers the child’s physical health or significantly impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
No motion for a substantial change in parenting time that would also change the party with whom the child resides a majority of the time may be filed if a prior motion requesting the same relief was disposed of by the court within the previous two years unless the court finds that the child’s present environment may endanger his or her physical health or significantly impair his or her mental development.
Modification of Decision-Making Responsibilities
To modify a decision-making order, one of the following conditions must have occurred:
1. the parties must agree to the modification;
2. the child has been integrated into the family of the moving party with the consent of the other party and such situation warrants a modification of the allocation of decision-making responsibilities;
3. there has been a modification in the parenting time order that warrants a modification of the allocation of decision-making responsibilities;
4. a party has consistently consented to the other party making individual decisions for the child which decisions the party was to make individually or the parties were to make mutually; or
5. the retention of the allocation of decision-making responsibility would endanger the child’s physical health or significantly impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
A party may not file a to modify decision-making responsibilities if a prior motion requesting the same relief was disposed of by the court within the previous two years unless the court finds that the child’s present environment may endanger his or her physical health or significantly impair his or her mental development.
Enforcement of Parenting Time
If the court finds that there has been or likely will be substantial or continuing non-compliance with the parenting time order, the court may issue any order that will promote the best interest of the child, including modifying the previous order, requiring the violator to post bond to ensure future compliance, requiring make-up parenting time, holding the violator in contempt of court, and fining the violator up to one-hundred dollars per violation.
Please refer to the separate article on this website entitled “Relocation” regarding the effect that a parent’s relocation to a substantially different geographic area (such as to another state) has on the parenting plan.
Child and Family Investigator (CFI)
The court has discretion to appoint a CFI to investigate, report and make written recommendations to the court regarding the best interest of the child. The CFI must be a neutral third person and can be a mental health professional, attorney, or other individual with appropriate training, qualifications and an independent perspective acceptable to the court. The purpose of a CFI investigation is to provide a brief assessment that is non-intrusive, efficient and cost effective. If the CFI or court believe a more comprehensive assessment is required, the court may appoint a parental responsibilities evaluation (discussed below) or take other action the court deems appropriate. The court can order one or both parties to pay the CFI’s fees, unless a party is indigent. A privately paid CFI’s fees are capped at $2,000 absent court approval for a higher fee.
Parental Responsibilities Evaluation (PRE)
The court must appoint a parental responsibilities evaluator (PRE) upon a request by one of the party’s, unless the court determines that the request was made for the purpose of delaying the proceedings. The court also has discretion to unilaterally appoint a PRE even if neither party requests it. The PRE must be a licensed mental health professional or county or district social services department, although the person signing a report or evaluation and supervising its preparation must be a licensed mental health professional. The purpose of a PRE is to perform an evaluation and file a written report concerning the disputed issues relating to the allocation of parental responsibilities for the child to assist the court in determining the best interests of the child.
The PRE may consult any person who may have information about the child and the child’s potential parenting arrangements. Upon court order, the PRE may refer the child to other professionals for diagnosis. The PRE may consult with and obtain information from medical, mental health, educational, or other experts who have served the child in the past without obtaining the consent of the parent or the person allocated parental responsibilities for the child; but the child’s consent must be obtained if the child has reached the age of fifteen years unless the court finds that the child lacks mental capacity to consent.
The party requesting the PRE must deposit a reasonable sum with the court to pay the cost of the evaluation. The court may later order the reasonable charge for the evaluation and report to be assessed as costs between the parties at the time the evaluation is completed.