Going through a divorce is stressful. While dividing property and other assets can be contentious, the issue that many couples struggle most with is how to divide custody and who gets decision-making control. If you don’t come to an agreement on your own or through mediation, the court will issue binding orders that you are both required to adhere to. But how does a court decide?
In Colorado, courts use the Best Interest of the Child (BIC) test. Because children have a right to emotional and financial support from both parents, this usually means a supervision split of some sort between both parents. The exception is if the court holds a hearing and finds that parenting time by one party would endanger the child’s physical health or significantly impair the child’s emotional development.
The BIC test is not simply a checklist the court fills out, checking boxes and then coming to a decision. Rather, there are a set of factors courts look at on a case-by-case basis to determine the best interest of these particular children and these particular parents. Some of the relevant factors include:
- The wishes of the parents
- The wishes of the child (if the court determines he or she is “sufficiently mature”)
- The child’s existing relationship with his or her parents and siblings
- The child’s adjustment to his or her home, school, and community
- The mental and physical health of all individuals involved
- The ability of the parties to foster and encourage a positive living environment
- Past patterns of the parents’ conduct regarding the child
- The proximity of the parties to each other; and
- The ability of each party to “place the needs of the child ahead of his or her own needs”
It’s important to note that one parent simply not wanting to share custody is not sufficient to award sole custody. Many (probably most) parents don’t want to go from seeing their children every day to seeing them only part of the time. That’s kind of a hard pill to swallow. But unless you can show that the other party will endanger your children physically or emotionally, the court will split time.
After you have filed your divorce in Colorado, if you are unable to reach a resolution on your own, the court will set your case for a hearing. During this hearing, you and the other party may call witnesses, present evidence, and testify yourself. If you are a pro se party (meaning you don’t have an attorney), you will want to make sure to address each of the factors listed above when you appear at your hearing. Hearings follow the rules of evidence and if the other party has an attorney, you will be at a disadvantage. The judge can only issue orders on the information presented at the hearing or stated in your other court filings, so it is important that all pertinent issues are raised at that time. Once the orders are issued, both parties must comply or can be held in contempt of court. To ensure that your position is fully represented, it is always in your best interest to be represented by competent counsel any time you appear before a judge.
Types of Parenting Time
Colorado courts usually divide parenting time in one of four ways:
- Equal Parenting Time – Under this type of schedule, children usually split their time during the week between each parent. It might be four days one week with mom, then four days the next with dad. This situation of course only makes sense when the parents live close (usually the same city) and won’t disrupt school or extra-curricular activities.
- Weekly Parenting Time – If a judge orders weekly parenting time, you and the other parent will rotate full weeks with the children. Mom has them one week, dad the next. As with equal custody, courts will only order this split if the parents are local to each other and it doesn’t cause serious disruptions to the children’s routine.
- Holidays and Vacation Time – Colorado courts will usually divide holidays and vacation time somewhat equally. Switching off major holidays each year is common. The same applies to when the children have days off of school and there are usually allowances for each parent taking vacations with the kids.
- Parenting Schedule for Distant Parents – For parents who move out of state or to a city where it is not reasonable to split time during the week or every other week, the courts will put in place a schedule for the distant parent. It might look a lot like the holiday and vacation schedule that applies when parents are local as well as include an extended stay with the distant parent in the summers.
Can My Parenting Time Be Modified?
In Colorado, parenting time can be modified, but it’s not necessarily an easy process, depending on your situation. The first thing you have to do is file a motion with the court to modify/restrict visitation. You will then have a hearing and the same rules apply as did to your initial hearing – the parties have to follow the rules of evidence, may call witnesses and present testimony. The court will again use the best interest of the child test.
Contact A Colorado Divorce Attorney
Divorce is can be complicated and messy. Don’t make decisions on your own without talking to an attorney first. Contact me, Jennifer Lewis, today for an evaluation of your case.