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 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.

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.

I believe my child’s other parent is an immediate danger to my child. What can I do?

You can request that the court restrict that parents parenting time under C.R.S. 14-10-129(4). To make such a request you must file a motion alleging a child would be in imminent physical or emotional danger if the parent were allowed to exercise their parenting time. Upon the adequate allegation in your motion, the court will immediately restrict parenting time, to supervised parenting time, until it can hold a hearing on the motion, which must be conducted within 14 days.  At that time the court will require evidence that supports the allegations in the motion.

Remember that parenting-time is the right of both the parent and the child, so it is a very serious matter to restrict someone’s parenting time and courts do not take this decision lightly. Also if you are found to have filed such a motion frivolously, without grounds, the court can order attorney’s fees or even restrict your parenting time as a result. Thus, while urgent action is often required in these situations, it is a good idea to consult an attorney if possible, before filing a motion to restrict parenting time.

What happens if my ex-spouse wants to move with our child?

Many people find that after a divorce they need to relocate out of state for work or personal reasons. Obviously such a move usually has a significant impact on the parties parenting plan. Because it has the potential to negatively impact the other parent’s relationship with the child the court has to balance the party with primary parenting time’s right to move with the other parent’s right to parenting time with their child.

When the majority parenting-time parent, or a parent with equally shared parenting time wishes to relocate with the child to a location that substantially changes the geographical ties between the child and the other parent, C.R.S. 14-10-129(1)(a)(II) dictates that parent seeking relocation must, give the other parent and the court notice including:

  1. Written notice of the intent to relocate,
  2. The location where the party intends to reside,
  3. The reason for the relocation, and
  4. A proposed revised parenting plan.

 

If the other parent is opposed to the relocation or the new parenting plan, that parent will file its opposition with the court. Regardless the court will hold a hearing on the relocation, to determine whether the relocation and parenting plan proposed are in the child’s best interest.

Pursuant C.R.S. 14-10-129(2)(c) the court considers a number of factors in a relocation hearing including:

  1. The reasons why the party wishes to relocate with the child;
  2. The reasons why the opposing party is objecting to the proposed relocation;
  3. The history and quality of each party’s relationship with the child since any previous parenting time order;
  4. The educational opportunities for the child at the existing location and at the proposed new location;
  5. The presence or absence of extended family at the existing location and at the proposed new location;
  6. Any advantages of the child remaining with the primary caregiver;
  7. The anticipated impact of the move on the child;
  8. Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
  9. Any other relevant factors bearing on the best interests of the child.

I already have an allocation of parental responsibilities order. Can it be changed?

Colorado family law favors stability and permanence of determinations. Particularly, the legislature has determined that it is generally in the best interests of children and to the benefit of families and the court system, if it is not possible for parents to constantly lityigate custody issues.

 

For minor modifications, the court can change a parenting planif it is in the best interests of the child, however, the court will likely require parents to create a parenting plan that provides an avenue for them to resolve minor modification on their own. If a party wants to change the person a child resides with a majority of the time, there are more strict limits. For instance, a party can request such a modification once after permanent orders have been entered, after that no party can file a motion to modify the primary residential parent within two years of the previous modification, unless the party can show the child is in danger. C.R.S. 14-10-129(1.5).

 

Further pursuant to C.R.S. 14-10-129, if the requested modification would change the majority residential parent, a Colorado court can only grant the modification if new facts have arisen since the original decree, and:

  1. The parties agree to the modification,
  2. The child has been integrated into the moving party’s family with the consent of the other party,
  3. The majority residential parent is seeking to relocate with the children, or
  4. The present environment endangers the child’s physical health or significantly impairs the child’s emotional development, and the advantage of changing residence outweighs any harm such a change would cause.

 

Similarly, Colorado law discourages alterations to orders regarding decision-making responsibility. Thus, pursuant to C.R.S. 14-10-131, a Colorado court cannot modify decision-making responsibility absent a significant change in circumstances making the modification necessary to serve the best interests of the child. This may seem rather generic, but the court will only modify decision-making responsibility if:

  1. The parties agree to the modification,
  2. The child has been integrated into the requesting party’s family with the consent of the other party, and the integration warrants the change,
  3. There was a modification of parenting time which justifies the change,
  4. One party has consistently allowed the other to make unilateral decisions for the child, or
  5. The child is endangered by the current allocation of decision-making responsibility, and the advantage of changing residence outweighs any harm such a change would cause.

What if my spouse an I agree on a division of parental responsibilities?

If you and your spouse are able to agree on a division of parental responsibilities that is fantastic! You have just saved your selves and your children a great deal of conflict, and created an environment that will hopefully lead to an amicable relationship with your ex-spouse that allows you both to co-parent your children. However, any agreement will still be reviewed by the court, and the court will still have to make a determination that that agreement is in the best interests of the children.

Further, remember that these agreements are by law somewhat difficult to modify, so you want an agreement that hopefully contemplates potential future conflict and provides for resolution of that conflict. Therefore, even if you and your spouse have reached an agreement, it is a good idea to consult an attorney before submitting anything to the court. If you have questions about your parenting plan, please contact our office to set up a consultation with an attorney.

What experts are involved in custody cases in Colorado?

Often in high conflict parental responsibilities cases the parties will choose to engage an expert or will ask the court to appoint one to provide a neutral insight into the behaviors of the parties and their interpersonal relationships with their children, in order to make recommendations to the court about what is in the child’s best interest. This is especially true in cases with allegations of abuse or neglect, substance abuse by a parent, or domestic violence.

The Court can unilaterally appoint an expert. However, the usual course of action is for the parties to agree on an expert, or one party will make the request to the court. There are essentially two types of experts Colorado courts appoint in custody cases, they are: Child and Family Investigators (CFIs) and Parental Responsibilities Evaluators (PREs). Both types of experts will meet with the parties, children, and will generally visit the homes of the parties for an evaluation. A Parental Responsibilities Evaluator completes mental health testing on the parties and conducts a complete evaluation of the mental health and relationships of all parties. Thus, there is no monetary cap on the amount a PRE investigation might cost. CFI’s are generally capped at $2000 and typically only investigate specific allegations raised in the case.

 

If you are a party to a contested custody case, which raises issues that you believe might require the use of an expert, please contact our office for a consultation to discuss your options and the legal and financial implications.

How do Colorado Courts determine who gets custody of children?

The term “custody” actually refers to two different forms of custody, physical custody and legal custody. Physical custody is what most people refer to when they use the term custody. Physical custody refers to the time the child spends in the physical presence and care of a parent. Legal custody instead refers to a parent’s rights to be involved in decision making and child rearing. These two concepts are included in Colorado law, however rather than the term “custody” Colorado law uses the term “parental responsibilities”. Parental responsibilities are divided into two categories: parenting time and decision making. In a divorce the court will allocate these parental responsibilities between the two parties.

In Colorado, there is a presumption in favor to joint decision-making responsibility. In other words, both parents have a right to be involved in major decisions involving the children unless the court determines it is not in the best interest of the child to be involved in such decisions. Major decisions include decisions affecting health, education, religion, and general welfare. However, day-to-day decisions are left up to the parent currently exercising parenting-time responsibilities.  In emergencies either parent can consent to necessary surgery or medical treatment.

Colorado courts allocate parental responsibilities based on what is in the “best interests of the child.” When deciding what is in the child’s best interest courts can consider almost anything except: 1) Conduct which does not affect a party’s relationship with the child (since Colorado has no-fault divorce, courts don’t want custody fights to be used to raise irrelevant allegations, like adultery); 2) gender of the parties; 3) a request for genetic testing; 4) a parent leaving the home due to the domestic violence by the spouse. However, C.R.S. 14-10-124(1.5)(a) dictates that the court will consider the following:

  1. The wishes of the child’s parents;
  2. The wishes of the child, if sufficiently mature (typically starts about 12 or so);
  3. The relationship between the child, the parents, siblings, and any other person who may significantly affect the child’s best interests;
  4. The child’s adjustment to his or her home, school, and community;
  5. 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;
  6. The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
  7. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
  8. The physical proximity of the parties to each other;
  9. Whether a party has been a perpetrator of child abuse or neglect;
  10. Whether a party has been a perpetrator of spouse abuse;
  11. The ability of each party to place the needs of the child ahead of his or her own needs.

 

Further, when making determinations regarding parenting time it will also consider:

  1. Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
  2. 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;
  3. Whether an allocation of mutual decision-making responsibility will promote more frequent or continuing contact between the child and each of the parties;
  4. A perpetrator of child abuse or neglect may not have decision-making over the others objection;
  5. A perpetrator of spousal abuse may not have decision-making over the others objection, 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.

 

As you can see, the Courts consider many factors when determining what is in the best interests of children. This can lead to complicated hearing, and lengthy evaluation processes that often involves experts. For more about experts see post below. As a result, if you are involved in, or expect to be involved in, a divorce where parenting time will be a contested issue, it is important to consult an attorney. This is often the most complicated and conflict ridden part of a divorce. Thus, please contact the attorneys at Smith, Shellenberger and Salazar, LLC to discuss the specifics of your case.