As the Petition has already been filed, you must be served with it, if you haven’t already. Unless you have consulted with an attorney on the matter it is not a good idea to attempt to evade service of the petition, as judges often do not look favorably on this sort of behavior and your spouse will likely find a way to proceed anyway.
You should accept service of the Petition. Next, you will have to submit the mandatory financial disclosures to the court. These disclosure forms can be found on the Colorado Courts website. You must fill out these financial disclosures regardless of the disputed issues in your case, because the Court must understand the full extent of the parties’ financial circumstances in order to make a fair ruling on all aspects of the divorce.
Once you have been served a petition for dissolution of marriage or legal separation, an injunction goes into effect. C.R.S. 14-10-107(4)(b)(I) dictates that the injunction prevents both spouses from:
- Removing children from Colorado without permission from the other spouse or the family law court. Usually permission for a vacation or summer camps etc. will be granted, but you must get permission.
- Disturbing or harassing the other spouse.
- Hiding, destroying, transferring or disposing of marital property, except in the ordinary course of business.
- Canceling or modifying any insurance (health, auto, life, etc.) without your spouse’s written consent or the Colorado divorce court’s permission, or allowing the policy to lapse for non-payment.
There remains debate as to whether activities other than those listed here are also prohibited. To err on the side of caution it is best practice to maintain all financial matters as they currently stand, from the time the petition was filed until final orders are issued.
Within 40 days of the filing of the Petition, the Court will set an initial status conference for the parties. Depending on the county the initial status conference may be before a family court facilitator or a magistrate judge. Regardless of who is presiding this is a preliminary conference to set deadlines for disclosures, schedule upcoming hearings, and discuss the anticipated issues in the case. The initial status conference is quick, about 10 minutes.
After that the proceedings depend on the circumstances of your case. If you have agreed on all matters in your case you can file for dissolution without ever having to appear for a hearing. If there are disputed issues those will be resolved at a permanent orders hearing, which is a full hearing before the judge including witnesses, evidence, and opening and closing statements. If your case proceeds to a permanent orders hearing, this can be lengthy and expensive, however, the attorneys at Smith, Shellenberger, and Salazar, LLC can ensure that you receive the best representation possible at your permanent orders hearing.
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:
- The wishes of the child’s parents;
- The wishes of the child, if sufficiently mature (typically starts about 12 or so);
- The relationship between the child, the parents, siblings, and any other person who may significantly affect the child’s best interests;
- The child’s adjustment to his or her home, school, and community;
- 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;
- The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
- The physical proximity of the parties to each other;
- Whether a party has been a perpetrator of child abuse or neglect;
- Whether a party has been a perpetrator of spouse abuse;
- 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:
- Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
- 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;
- Whether an allocation of mutual decision-making responsibility will promote more frequent or continuing contact between the child and each of the parties;
- A perpetrator of child abuse or neglect may not have decision-making over the others objection;
- 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.