How do I get an order of paternity?

Law presumes that when a married heterosexual couple has children the husband is the father of those children. Disproving this presumption often can only be achieved through a DNA test and if this a concern for you please contact our office for a consultation. If the child does not have married parents at the time of its birth paternity can be established voluntarily, by agreement of the parents. Parents in agreement can sign a “Voluntary Acknowledgement of Paternity” form, and then the father’s name can be added to the child’s birth certificate.

However, the most common way to establish paternity is through a court action. Under Colorado law, any of the following persons or agencies may bring a court action to establish paternity:

  1. the child, through a personal representative if the child is under 18 years of age
  1. the child’s mother
  2. a man who believes he is the father or who has been identified as the father
  3. the Colorado Department of Human Resources
  4. a county department of social services, or
  5. a legal representative for a person who has the right to go to court to establish paternity but is deceased, incapacitated, or a minor.

 

The court can then order a DNA test to establish paternity, after the genetic test results establish paternity, the judge can also issue orders regarding child support (see child support section above), health insurance for the child, allocation of parental responsibilities (see other custody questions above), court costs and fees.

Establishing paternity can ensure that a child is supported financially and can maintain a relationship with his or her father. This important step in ensuring your child’s emotional and physical help can be challenging to navigate on your own. If you would like the assistance of a professional with extensive experience in family law matters please schedule a consultation with the attorneys of Smith & Shellenberger, LLC today.

When does child support obligation end?

In Colorado a child support obligation typically lasts until a child turns 19, graduates high school, or joins the military, whichever happens first.  Colorado courts cannot order parents to pay for college education of their children. The obligation terminates automatically. C.R.S. 14-10-115(1.6). However, the obligation does not automatically terminate if:

  1. You still owe arrears.
  2. If you still owe child support for another child or children.
  3. If the support order was entered before July 1, 1997.

How does the court determine how much child support a parent pays?

In Colorado, the court first determines the the gross income of each parent. Information for these calculations is taken from the financial disclosures each party makes at the initial discovery stage of a divorce or custody case. The court determines the precise number of overnights the child has with each parent. Based on the number of overnights the court uses one of two formulas to calculate the necessary child support based on the parent’s incomes.

Child support can also be adjusted based on educational or healthcare expenses paid by one parent.  The calculations of exact numbers can be complicated. Other factors like the underemployment of a parent or certain deductions form gross income can make estimating a child support obligation on your own difficult. However, you can get a general idea by utilizing the Colorado courts child support calculator, available here: https://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=94.

A party can also receive back child support from before the time the child custody or divorce action was filed if the parents were not living together for a period before the case was filed. This amount is calculated based on the time the parents were living apart prior to the final court order in the case, unless the court has issued temporary orders for the period during litigation.

If the parent obligated to pay child support fails to pay, that parent owes “arrears” to the other parent.  Your local Child Support Enforcement Unit will help you enforce your existing child support order by garnishing wages, government benefits, or even lottery winnings, to satisfy judgments. The CSEU has some enforcement measures not available to private attorneys. However, the attorneys at Smith & Shellenberger, LLC.

How will the court determine if I or my ex-spouse owe Child support?

Parents have an obligation to take care of their child’s needs. Thus, child support is the right of the child, not a right of the parent. Whether you pay child support during and/or after a divorce depends on how much parenting time you have and exercise. If you split parenting time essentially equally, both parents or neither may have to pay child support or some combination of the two. If there is a primary custodial parent, the other parent will likely have to pay child support. C.R.S. 14-10-115

 

It is important to note that whether a parent will have to pay child support is not something the court takes into consideration in determining how much parenting time is in the best interest of the child. Thus, if you are concerned about the paying child support or don’t want to pay, this is not an issue you can raise with the court. If you would like to discuss a current or potential child support obligation with our attorneys one would be happy to meet with you.

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.