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Child Custody, Parenting Time, & Decision Making

The term “custody” is no longer used in Colorado by the courts. Instead, Colorado courts use the term “parental responsibilities.” 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 refer to the concept as “custody” and the attorneys who practice this type of law as “child custody attorneys” or “child custody lawyers.”

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), states that responsibilities should be determined “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[.]”

 

Parenting Time / Physical Custody of the Child

There are numerous factors that the court can look at in determining exactly what is best for the child or children in each case. In fact, courts are instructed to consider “all relevant factors.” The factors include:

  • the wishes of the parents;
  • the wishes of the child;
  • the child’s interaction with other family members such as siblings;
  • the child’s “adjustment” to his or her home or school;
  • the physical and mental health of the child and the parents;
  • the ability of the parties “to encourage the sharing of love, affection, and contact between the child and the other party”;
  • whether a “past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support”;
  • the distance between the parents’ homes as it relates to “practical considerations of parenting time”; and,
  • the ability of each parent to place the child’s needs above their own.

The “best interests of the children” is the legal standard by which parental responsibilities are initially awarded. Many factors are taken into consideration when determining an initial award, such as the history of involvement by each parent, the mental and physical health of the parties, and the ability of the custodial parent to encourage the relationship between the children and the non-custodial parent. Changing parenting time awards is much harder than entering into them the first time, as different standards apply. Many parents enter into optimistic parenting plans that do not work and find that they are stuck with a plan that is very difficult to change later. If you have any questions about this, you are well advised to speak with an attorney who understands child custody issues and concerns.

 

Decision Making / Legal Custody of the Child

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

  • evidence that the parties can cooperate and make decisions together;
  • evidence that there is a “past pattern of involvement of the parties with the child 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”;
  • evidence that a particular decision will “promote more frequent or continuing contact between the child and each of the parties.”
C.R.S. § 14-10-124(1.5)(b). Generally, decision making is awarded to one or both of the parents, with the statute favoring joint awards. In the event the parents cannot come to an agreement 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 at the time.