Chapter Two

Parenting Time & Decision Making

Most people reading this would agree that parenting time is the most important issue to anyone going through a divorce or custody dispute. Because parenting is so important, you can be sure that a lot of information on the topic exists—some good, some bad. If you listen to no other advice in this guide, listen to this. If you want to win a custody or parenting dispute, make sure your attorney knows what they are doing and strictly follow their advice.

Read on to learn about:

  • How Colorado courts decide custody cases,

  • What factors the court will look at, and

  • Several actionable do’s and dont’s for you to follow so you make no mistakes.

Learn more:

Basics of Child Custody and Parenting Time

Child custody and parenting time is the issue that our clients ask about the most and for good reason. Colorado’s child custody laws are complex and depend on several factors including your unique situation, the district you are in, the judge presiding over your case, and several other factors. Knowing the basics can help you prepare your case and ensure you are doing the right things to protect your rights.

First, however, you should know that Colorado courts do not use the term “custody” anymore. Instead, the term “parental responsibilities” is used to describe what used to be called “physical custody” and “legal custody.” What used to be called “physical custody” is now called “parenting time” and what used to be called “legal custody” is now called “decision making.”

Although the terms have been modernized, the vast majority of people still call the concept “custody” and the attorneys who practice this type of law as “child custody attorneys” or “child custody lawyers.” This is important if you are doing research because the statutes addressing this issue in Colorado all refer to the “allocation” of “parental responsibilities,” not custody. See C.R.S. § 14–10–123 and C.R.S. § 14–10–124.

The overarching rule in determining parental responsibilities is a “best interests of the child” standard. The best interests of the child statute, C.R.S. § 14–10–124(1.5)(a), instructs courts to allocate parental responsibilities “in accordance with the best interests of the child giving paramount consideration to the child’s safety and the physical, mental, and emotional conditions and needs of the child[.]” In general, this means that Colorado courts are instructed to consider just about anything that shows something is better or worse for the child. Because of this, if you are wondering whether something will affect your child custody case, the answer is almost always “Yes!”

Factors Affecting Parenting Time

There are numerous factors that the court can look at in determining exactly what is best for the child or children. In fact, courts are instructed to consider “all relevant factors.” Although the Court is instructed to consider “all” factors, there are several that are specifically set out in the parenting statute including the following:

  • “The wishes of the parents.” The first thing the court will look at is what the parents want for their children.
  • “The wishes of the child.” If the child is old enough to express an opinion, the court will take that into account.
  • “The child’s interaction with other family members such as siblings.” This factor also takes into account other siblings such as half-siblings and step-siblings.
  • “The child’s adjustment to his or her home or school.” Colorado courts focus on a child’s schooling. Typically, the court seeks to provide the child with the best available option for schooling.
  • “The physical and mental health of the child and the parents.” This factor can include the mental and physical health in the ordinary sense, but also in the extraordinary sense in terms of mental health disorders and physical abuse.
  • “The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party.” This is one of the most important factors. Courts often look at how well each parent will foster a relationship between the child and the other parent once the parties are divorced.
  • “Whether a past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support.” This is one of the broader factors and includes things such as relationships with teachers, time spent with the child, and the parents’ general interactions with the child.
  • “The distance between the parents’ homes as it relates to practical considerations of parenting time.” This factor is fairly straightforward but can become very complex in relocation cases. The type of parenting plan ordered may be affected by the child’s age, whether the child can travel alone, and the financial resources of the parties.
  • “The ability of each parent to place the child’s needs above their own.” Courts will look at whether a parent is acting selfishly or selflessly. The parent that puts the needs of the child above their own is more likely to get more parenting rights, although it is common for both parents to equally put the needs of the child above their own.

Factors Affecting Decision Making

When it comes to “decision making,” rather than parenting time, courts are instructed to consider “all relevant factors” again and then also consider several more factors, including:

  • “Evidence that the parties can cooperate and make decisions together.” The more cooperative that the parents are, the more likely the court is to award joint decision-making. If the parties are unwilling or incapable of making decisions together, the court may consider awarding decision-making authority to one parent over the other.
  • “Evidence that there is a past pattern of involvement of the parties with the child that reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child.” This one is fairly self-explanatory, but the court will assess you and your spouse’s relationship with your child, as well as your ability to continue promoting that relationship after the divorce.
  • “Evidence that a particular decision will promote more frequent or continuing contact between the child and each of the parties.” The court looks at whether the parties will encourage a relationship with one another. If one party has sole decision-making (or is asking for sole decision-making) then the court will look at this factor particularly closely.

Generally, decision making is awarded to one or both of the parents, with the statute favoring joint awards. If the parents cannot agree on this, the court will decide which parent will make certain decisions for the children. In general, decision making refers to major decisions and does not relate to day-to-day decision making. Typically, day-to-day decision making is left to the party that has the children.

Advanced Parenting Issues

To learn more about some of the more advanced concepts related to parenting time and decision making, take a look at these blog articles.

Top 5 Things to Know When Hiring a PRE or CFI
Motions to Restrict Parenting Time
What to Know About Protection Orders and Divorce
Parenting Plans
Mother’s Rights to Custody and Parenting
Father’s Rights to Custody and Parenting
The UCCJEA & Interstate Child Custody Disputes


Tips for Custody Disputes

DO: Build a Workable Relationship with Your Spouse

An unwillingness to work your spouse may cause a court to dislike you as a parent. This is important in relocation cases or cases where you are asking for the majority of the parenting time or for sole decision-making. If the court will consider giving you the majority of the parenting time, it will want to know that you will not shut the other parent out of the child’s life.

DO: Exercise Your Parenting Rights

If the court awards you parenting time, use it. If the court feels like you are asking for parenting time that you would not exercise or do not truly want, it may factor that into its decision.

DO: Pay Attention to Optics and Perception

Court cases are all about optics. Whether something is true or not is less important than whether it appears to be true. In cases where the court will hear your case for a day or less, it is very important to ensure that the optics of your case are handled well. More importantly, do not “give” your spouse any wonderful sound bites for trial. A short recording or instance where you behaved poorly can have a powerful impact.

DO: Learn the Law

Understanding the factors that the court will look at will help you tremendously. Mental health professionals, such as Professional Responsibility Evaluators (PREs) and Child and Family Investigators (CFIs), know of the law and understand what the court will be looking for. Educate yourself so that you know how to navigate the process. Although your attorney will guide you each step of the way, many of the most important components of a child custody case happen outside the presence of attorneys and in the presence of the CFI or PRE.

DO: Always Be Prepared

Remember that this is a court case and court cases are won and lost on the evidence. Document everything so that you can provide experts with relevant information, help yourself recollect events more-clearly, and reduce the cost of your case. The more prepared you are, the easier it will be to drive your point home with your attorney, the experts, and the court.

DO: Hire the Best Custody Lawyer

With finances, you can often figure things out on your own. With custody, that is not always true. Hire the best child custody lawyer, make no mistakes, and get the process over with quickly and with the best result possible. Child custody issues are extremely difficult to improve if not done correctly the first time. Although you may consider a less expensive, less experienced attorney for minor issues that happen down the road, it is paramount that you hire the best attorney possible in the initial child custody action (whether it be part of a divorce or post-decree matter).

DON’T: Disparage Your Spouse to the Children

Do not talk about your spouse negatively to your kids. Instead, try to keep your opinions and feelings to yourself or vent with a close friend. Courts do not take lightly to these sorts of interactions and if it gets particularly bad the court may reprimand you or otherwise sanction the conduct.

DON’T: Arrive Late

Do not arrive late for court hearings, parenting time, or expert appointments. The court may see your tardiness as an unwillingness to take the process seriously or that you lack commitment. If the court determines that you take parenting time for granted, they may award that parenting time to your ex instead.

DON’T: Rarely Reschedule Parenting Time

Besides being on time, do not constantly reschedule your parenting time. First, it makes it look like you are not taking your role as a parent seriously. Second, and more importantly, it makes it appear as if you are asking for parenting time that you do not truly want (i.e. “I want X number of nights, but when I have them I always cancel or reschedule them”).

DON’T: Drink to Excess or Do Drugs

It probably goes without saying but Colorado courts taking drinking to excess and drug use very seriously, particularly if done in front or around the children. Indeed, if it becomes bad, the court may order that your parenting time be supervised.

DON’T: Disobey Court Orders

Do not disobey or otherwise disregard court orders and court recommendations. The court will be watching your conduct throughout the case. If they determine that you are quick to disobey orders then they will take that into account at your trial or hearing. The court is unlikely to impose the orders that you are requesting when you yourself do not follow their orders.

DON’T: Involve Your Children in the Case

Do not involve the children in your case. Do not talk to them about the specifics, whose fault you think it is, what the result may be at trial, or guilt them for having a relationship with their other parent. Colorado courts are particularly swift to sanction this conduct.

DON’T: Fabricate Things about Your Ex

Never make up things about your spouse that are not true and do not embellish or exaggerate what happened either. If you get caught doing this, the court will call your credibility into question.