Can grandparents and other third parties seek custody of a child?

Grandparents or any third party may seek custody or allocation of parental responsibilities (APR), pursuant to C.R.S. § 14-10-123.30. However, in order to seek APR under this statute one of these two conditions must be met; either, the child must not be in the physical care of the parent, or the non-parent must have had physical care of the child for six months or longer, and the petition must be filed within six months of the termination of the non-parent’s physical care of the child. The statute requires the non-parent to give notice to the child’s parent, guardian, or person allocated parental responsibilities, who may appear and be heard on the petition for allocation of parental responsibilities.

The court will apply the best interests of the child test just like in any other allocation of parental responsibilities case, however, keep in mind that the rights of the natural parents to parent their children are still important here, even if the child is not currently living with them. Thus, these can become complicated cases. If you are interested in filing for custody of a child under this statute please contact our office and schedule a consultation to discuss your options with one of Smith & Shellenberger, LLC experienced attorneys.

What is mediation? How can it help me?

Mediation is a process of assisted negotiation. The purposes of the process is to help parties reach an agreement on issues in a divorce and hopefully create what is called a Separation Agreement. In mediation, the parties make their own decisions, however a mediator provides all the relevant background legal information and can evaluate the facts based on the law to inform the parties what offers comport with the law. The mediator is there only to provide information and facilitate negotiation. Unlike, the court they do not impose decisions on the parties. This level of agency is one primary benefit of mediation.
In almost all cases Colorado family law courts require mediation. Colorado court rules promote mediation in family law cases. Therefore, courts often order mediation occur prior to a final hearing. Courts order mediation to save the parties and the court time and resources. However, this is not the only reason to engage in mediation. People are often happier with the result of mediation because they reach it on their own. Additionally, mediation is often preferable to spending lots of money in attorney fees and several months litigating a divorce.
Colorado attorney ethics rules require attorneys tell their clients that there are alternative methods of dispute resolution, such as mediation. CRPR 2.1. At Smith & Shellenberger, LLC we believe in the benefits of mediation and will advise you on your rights and best interests prior to engaging in mediation. Our office can also recommend mediators we have worked with in the past and help ensure that you get the most value out of your time spend with the mediator.
Mediators are neutral third parties. They do not represent either party in a divorce. Thus, it is helpful to have an attorney who can advise you and keep your interests in mind during the mediation process. The attorneys at Smith &Shellenberger, LLC, we can help you use mediation to reach a resolution to your divorce that saves you time and money and helps you maintain the important relationships with your former spouse and children that will allow you all to move forward together harmoniously.

What are my rights as a grandparent to visit my grandchild?

If the child has two fit parents who wish to prevent you from seeing or having a relationship with your grandchild you do not have a right to override the wishes of a fit parent. However, if the grandchild’s parents have obtained a dissolution of marriage or an annulment, or legal separation, the child has been placed into the legal custody of someone other than a parent, or the child’s parent, has died, grandparents are allowed to petition the court for grandparent visitation under C.R.S. 19-1-117. The court hen conducts an analysis to determine whether the grandparent visitation is in the best interests of the child.

How do you get a same sex divorce in Colorado?

In Colorado same-sex marriages are treated exactly the same as any other marriage. This means that the same rules apply to a same-sex divorce as any other divorce. This also means that same-sex divorces can be just as complicated and difficult. Additionally, couples who formed a civil union under Colorado’s previously created civil union law must go through a process functionally indistinguishable from a divorce. If you are part of a same-sex marriage or civil union and are going through or contemplating a divorce the attorneys at Smith, Shellenberger, and Salazar, LLC want to help you.

What if I am not married to my child’s parent? How is custody determined?

If you are unmarried and are involved in a custody dispute the court will apply the same factors discussed in the custody section above. Keep in mind that if you are unmarried and do not have a custody order or parenting plan in place it is important to get one as soon as possible, even if you currently have a good relationship with your child’s other parent. This is important because if you wait until issues arise, or worst case scenario, the other parent leaves with the child, it is much more difficult to pursue and enforce your parenting rights. Regardless of your right to parent your child, the status quo is always going to carry weight when determining the best interests of the child, so it is important to protect your rights and your relationship with your child as soon as possible. If you need to have parental responsibilities ordered by the court please contact our office as soon as possible to schedule a consultation.

I have a custody order from another state. Can it be enforced in Colorado?

Colorado has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at C.R.S. 14-13-101, et seq. This law allows Colorado courts to register an out of state child custody determination. It is a simple process that requires a form that can be found on the judicial website, a filing fee, and certified copy of the child custody determination. If you have relocated to Colorado from out of state, it is important to register the applicable child custody order if you want Colorado courts to be able to quickly enforce the order. If you have questions about register an out-of-state order please contact our office to schedule a consultation with one of our attorneys.

 

Once the out-of-state order has been registered in Colorado, Colorado Courts can modify the out of state order, if one of the following is true:

 

  1. Colorado is the child’s home state, which means the child has lived here with a parent or acting parent for the six-month period immediately preceding the filing of a Colorado child custody action (or for the child’s life, if the child is less than six months old),
  2. Colorado was the child’s home state within six months prior to the filing of a custody action, and a parent/acting parent still lives in Colorado,
  3. No other state has jurisdiction, or the child’s home state has declined to exercise jurisdiction on the grounds that Colorado is a more convenient forum, and the child has a significant connection to Colorado,
  4. Colorado initially entered parenting orders (e.g. a Colorado divorce or paternity action), and either the child or one of the parents has lived in Colorado continuously since then, or
  5. Temporary emergency jurisdiction exists because the child is physically present in Colorado and has been abandoned or some other emergency, such as abuse, threatens the child.

Modifying an out of state order is a more complicated process, than registering an order, thus if you need an out-of-state order modified, particularly if it has not been registered in Colorado yet, you should consult an attorney before proceeding. The attorneys at Smith, Shellenberger, and Salazar, LLC would be happy to help you with that process.

How will the Court divide our property?

Colorado is a “marital” property state, which means that all property acquired during your marriage is considered joint property of both spouses, regardless of who earned the money or made a purchase.  C.R.S. 14-10-113. The only property that will be considered separate will be property acquired before the marriage and kept  separate, not comingled or mixed with marital property. Separate property also includes things purchased with separate property, however increases in value during the marriage are considered marital property.

Once all marital property is identified, the court will divide the marital property equitably. This does not mean that the division will be exactly equal, the court will consider a number of factors when dividing property, including:

  • each spouse’s contribution to the acquisition of marital property, including contributions as a homemaker,
  • who receives the family home,
  • increase or decrease in the value of a spouse’s separate property during the marriage,
  • use of separate property to satisfy marital expenses or debts
  • support awarded to one spouse

 

Debts acquired during the marriage are also marital property, regardless of who incurred the debt or for what purpose. Thus, keep in mind that your debts will also be divided equally unless they can be considered separate property. Separate debts are often difficult to determine. The court will determine whether the debt was acquired to benefit the marriage, for example educational loans can be joint debts if they were acquired during the marriage, and the spouse’s education benefited the marriage in increased income or other benefits.  However, such a determination is often subjective. If you believe you or your spouse may have significant separate debts you should consult an attorney.

Also remember that you are not allowed to “dissipate,” in other words, hide or get rid of, marital property once one party has filed a divorce petition. This is extremely important because to attempt to hide or eliminate marital property during a divorce is violation of a court order and therefore grounds for contempt. While you likely won’t go to jail for such a violation, the judge will take it into consideration during the court’s division of property, and you are much less likely to receive a favorable result.

Property division issues are often a great place to start negotiating a settlement. However, just because dividing property can seem like a simple numbers calculation, does not mean that it is not helpful to have a lawyer. Lawyers can help you understand what you might be entitled to under the law. A lawyer can also help you assess the value of different property or hire a professional to do so. Perhaps most importantly, an attorney can help you negotiate the best terms for you or represent your economic interests in a final hearing. Contact our office today if you want to discuss property division issues with one of our attorneys.

Will one party owe spousal support to the other? How is spousal support calculated?

Spousal support is the more modern term for alimony. In Colorado, the courts use the term maintenance, because the purpose of the statue is to provide a means for a spouse with less income to “maintain” more or less their standard of living from their marriage for a period of time, typically dependent on the duration of the marriage. C.R.S. 14-10-114. In determining maintenance, the court will consider a number of factors including, the parties’ standard of living before the marriage, the resources of the party seeking maintenance, the time necessary to gain education or training to increase their earning capacity, age of the spouses, the physical and emotional condition of the spouse seeking maintenance, and the other spouse’s ability to pay.

 

Like most aspects of Colorado family law, maintenance awards are not a punishment or reward for one parties’ behavior during the marriage or the divorce. Instead, the purpose is equal distribution of assets so that the parties can move on and eventually live entirely independently. Maintenance can be a complicated issue as it can be one of the more difficult aspects of a divorce to estimate precisely. This is because it is very dependent of on the judge’s exercise of discretion. This is also an area where spouses can have a fair amount of flexibility during settlement discussions. Thus, it is a great idea to consult an attorney about your prospects for either receiving or paying maintenance.

What can I do if I was falsely accused of domestic violence?

In emotionally charged situations, especially during divorce or child custody disputes, parties often raise unfounded allegations of domestic violence in an attempt to gain an advantage. While the Court disapproves of and even punishes parties for making such false claims; the severe nature of domestic violence claims and the deference courts have to give such claims means it is often very difficult to prove such claims are false. It is imperative that you at least consult an attorney if such allegations are made against you. Failing to adequately fight such claims could have a severe impact on your rights and even your liberty. If you find yourself in this situation, please contact our office to schedule a consultation as soon as possible.