As parents, it is your job to stay in control of your emotions at all times and be the adult, especially in situations where your children could become emotionally scarred. Keep in mind that when parents engage in battle over a child, nobody really “wins”. Even if your child hasn’t directly expressed it to you, they may be experiencing strong feelings of guilt over the breakup of your marriage, and they may even feel abandoned or unloved by the parent who has left the family home. Even one parent’s rejection of the other can manifest itself in a child as feelings of personal rejection.
Rather than taking such an adversarial view of the custody process, try to work together with your spouse and the courts or mediators to establish an attitude of cooperation. This will help your child enormously, and it will keep your relationship with your ex-spouse amicable. Remember, you still have years to go as “co-parents”. Destroying what is left of your relationship now is going to set your children up for much heartbreak down the road.
How do the courts define child custody?
Colorado no longer uses the terms "legal custody" and "physical custody" or "visitation" in divorce. Generally, what was once known as "physical custody" is now termed "primary residential parental responsibility" The older term "visitation" has been replaced by the term "parenting time". What once was generally understood to mean "legal custody" is now referred to as "decision making".
Residential responsibility may be primary in one parent (custodial-primary), which means that the child resides with one parent, and other parent has fewer than 92 overnights with the child. Sometimes this is sole physical custody, i.e. the other parent has no overnights with the child. Sole physical custody is rare, however. Most visitation right arrangements involve overnights with the non-custodial parent, as the right to visit with the child is a fundamental right, in child visitation arrangements and parenting plan provisions, overnights will rarely be denied altogether.
More typically, the Courts award a shared residential responsibility ("shared custody" or "joint physical custody") which means that the other parent has more than 92 overnights and up to 182 overnights, a true shared custody or 50/50 schedule. Over the past several years, the Colorado Springs courts more often award a shared schedule of parenting time - even a 50/50 sharing - than any other type of parenting plan.
What factors determine child custody rights?
In determining physical custody, or residential parental responsibility, the courts look to 11 factors:
(I) The wishes of the child's parents as to parenting time;
(II) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
(III) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests;
(IV) The child's adjustment to his or her home, school, and community;
(V) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
(VI) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
(VII) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
(VIII) The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
(IX) Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6-401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence;
(X) Whether one of the parties has been a perpetrator of spouse abuse as defined in subsection (4) of this section, which factor shall be supported by credible evidence;
(XI) The ability of each party to place the needs of the child ahead of his or her own needs.
Rarely, but sometimes, the Courts will approve of a "nesting arrangement" whereby the children reside in the family home, and the parents move in and out week by week, sharing the children. The problems this may engender are obvious, and thus, separation, i.e. separate residences are the far more common practice.
How do the courts determine legal custody / decision making?
The other aspect of parental responsibility is decision making, formerly know as legal custody. The Courts generally award both parents the right to decide major issues about the child, and leave day to day decisions to the parent with whom the child resides.
In determining decision making, the court looks to five factors:
(I)Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
(II) Whether the 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;
(III) Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties;
(IV) Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6-401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of child abuse or neglect, then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue over the objection of the other party or the legal representative of the child.
(V) Whether one of the parties has been a perpetrator of spouse abuse as defined in subsection (4) of this section, which factor shall be supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of spouse abuse, then it shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party or the legal representative of the child, unless the court finds that the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child.
What types of visitation arrangements are there?
Some parenting plans take on a variety of forms or schedules. Common visitation right arrangements are:
(1) alternate weekend visitation with the non-custodial parent, including three day holidays.
(2) Mid-week visitation with the non-custodial parent.
(3) Sharing the child during periods of school recess.
(4) Alternating holidays
(5) Mother's Day with Mother, Father's Day with Father
(6) Alternating the child's birthday
(7) Open telephone contact by the parent who does not have physical custody
(8) Exchange of a few days visitation here and there.
Lack of a marriage has no impact on the court's view of the matter. The best interest of the child governs.
If you need advice on how to seek the most sensible parenting solution for your Colorado divorce; consult with a Colorado Springs Child Custody Attorney who has experience negotiating custody agreements that work for everyone involved.