The first thing you may want to consider about child custody is whether or not you are dealing initially with child custody. The first thing you want to determine is if you are dealing with an initial child custody situation or you are going back for modification of child custody. In an initial determination of child custody there’s going to be a whole slew of things that you discuss to determine what the court would look at to determine child custody initially.
If it’s a post decree, in other words you already have your divorce or you already have allocated parental responsibilities, it becomes a question of why are you modifying it meaning another whole set of factors will come into play.
The second thing would be what standard are you dealing with in the custody case. Are you dealing with the best interest of the child’s standard? Is this a normal divorce situation where both parents are good parents? If that is the case you’re going to be dealing with what’s in the best interest of the child and the custody arrangement is going to be looked at in that way what’s in the best interest of the child.
You should also consider if you are dealing with an endangerment situation. These are a situations in which you may be worried that one parent either is unable to care for the child because of a mental health issue, there is a negligence issue with the child, there is an abused situation with the child, or anything else that would endanger the child either physically, emotionally, or psychologically. If you want to change custody or dealing with restricting someone’s custody that means you are dealing with an endangerment standard.
Even in an initial determination, you are still going to be dealing with an endangerment standard. If there is a drug or alcohol problem with one of the parents, then you are also going to be dealing with an endangerment standard.
The third thing you want to consider is what kind of evidence do you need to support the parenting plan you’re looking for. Is it a parenting plan? Is it a fifty-fifty parenting plan? Are you looking for one parent having a lot more of the parenting time and just some visitation for the other parent? What kind of evidence are you looking for?
Let me explain some such situations. Let’s say one parent works nights or one parent is on-call and could be called away at anytime or one parent travels frequently and they don’t know when that travel schedule is going to be. Those are situations where that’s the kind of evidence that you would use to say, “Maybe fifty-fifty doesn’t work under these circumstances.” Even though there isn’t an endangerment, it’s just not going to work under the circumstances. What evidence? What are you looking at to support the parenting plan that our client feels is in the best interest of the child or the children?
Number four, what are the chances of success of that parenting plan? It’s a question definitely you should discuss with your attorney. I have people that come in that really want, “I want 100% custody. I don’t think my spouse is a good parent and I do not want them to have custody with the children. They can see the children during the day, but I don’t want them to have any overnights with the children.” What are your chances of success under those circumstances?
My answer would be to tell me the circumstances that make you think it’s not a good idea for your children to be with their father or mother. Because if the circumstances are such that you just don’t like their parenting, your chances of success are probably lower than if they have drug and alcohol problems. If you’re trying to restrict the parenting of one parent, there has to be a reason that there’s an endangerment to do so.
The chances of success is a very important thing to talk about with your attorney. You do not want an attorney to go down the line of fighting for something that is never going to be something that can be won in a court situation. You really need to be realistic and you need to look at what’s in the best interest of the children, so chances of success.
Lastly, what are the consequences is you’re not successful? I bring that up because let’s just say you’re trying to modify parenting time and you go in and you’re unsuccessful in that modification and parenting time stays the same. Here in Colorado there is going to be a two-year moratorium on being able to come back and modify again, so you don’t want to try to modify if you really don’t have much of a chance of success. You want to wait until you have the evidence that would have you have a decent idea that you might be successful in court on modifying before you do, so you don’t get caught in that circumstance of having to wait another two years if you fail in your attempt. For more information about filing for divorce, how divorce works, or any other family law matters in Colorado, call us at 303-329-3802.