How are child decisions determined during a contentious divorce proceeding? This is one of the toughest issues that a family law attorney faces, is where both parents aren’t able to agree regarding what is in the best interests of their child or children. That is really what the court looks at, what is in the best interests of the children? That’s the focal point. Not necessarily what each parent wants, but what is best for the kids. There are a number of factors that the court considers under the statute, which is Colorado Revised Statute 14-10-124 entitled best interests of the children.
Factors include the ability of each parent to encourage the love and support towards the child with the other parent. This is a huge problem with parties who are divorcing or separating is the ability to disengage from the other parent and not get the children involved in the divorce process. That is a huge factor for the courts. They get very unhappy if you are inserting your children in the middle of your divorce case.
Other factors that the court considers are the geographical location between the parties and the child. In other words, how close do the parties live together? If you think about the practical realities of it, if you’re going to be separated and you have school-aged children, how are you going to get them to school? How are you going to pick them up from school? How are you going to get them to their activities? How are you going to handle the holidays? Those are factors that the court looks at in determining parenting time.
In addition to parenting time, there’s also the issue of decision-making. Can the parents demonstrate the ability to work together to make decisions? That’s a huge factor. Colorado prefers joint decision-making. However, if the two parents simply cannot agree and don’t see eye to eye or there are issues of domestic violence or abuse or child abuse involved, the court does have the authority to award sole decision making to one of the parents. Decision-making encompasses major decisions, such as where are the children going to go to school? What religion are the children going to be raised? What major activities are the children going to participate in? I’ve seen a lot of issues with expensive extra-curricular activities such as soccer, which is amazingly expensive, and disputes arise on how to pay for it. How about major decisions regarding the children’s healthcare? What if the children need orthodonture treatment or they have the need for surgery? Those are major decisions that court has to reach an agreement or order a parenting plan on.
If you can’t agree, there are two experts that you could consider hiring in Colorado to help arrive at what is going to be in the best interests of the children. There is the parental responsibilities evaluation. That is usually conducted by a mental health professional. That evaluation involves in-depth, psychological testing, in-depth interviews of collateral contacts, in-depth talking to the parties, reviewing text messages, and other materials. That report can be quite pricey. The typical retainer for a parental responsibilities evaluation if $5,000. I have seen those reports cost in excess of $15,000. It’s a very expensive process.
The less expensive option for parties who can’t agree about parenting time and decision-making is a child and family investigator. A child and family investigator is a $2,000 cap under Colorado law. They are not duly authorized to do psychological testing or drug and alcohol evaluations. They do interviews of the parties, they talk to collateral contacts, they talk to teachers, they talk to relatives, they observe the parties interact with the children and they also write a report that is submitted to the court regarding what is in the best interests of the children.
Either of those options is available to parties. You must decide fairly early on in the process if you want to go that route because typically those reports take about 90 days to complete so it will delay your case. Otherwise you can attempt to engage in mediation to see if you can reach some common ground. In many instances, parents are simply not able to agree about parenting time and decision-making and have to have the court decide.