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.

I was never formally married in a ceremony. Am I married?

You may be a party to a common law marriage.

A dispute over the existence of a common law marriage usually only arises at the end of a relationship. At that time, it is going to be up to the court to determine whether such a marriage existed. No Colorado law enumerates the requirements of a common law marriage, C.R.S. 14-2-104(3), enumerates the requirements for a Colorado marriage and states: “Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman.”

 

Thus, the courts will look to case law to determine the requirements for a common law marriage. Case law states that “A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.”  People v. Lucero, 747 P.2d 660 (Colo. 1987). This means the couple must:

  1. Cohabitate,
  2. Mutually agree to be married, and
  3. Openly hold themselves out to the public as married.

 

Each of these criteria can be demonstrated a number of different ways. A couple does not need to live together for a particular period of time, but the duration of the common law marriage can only be as long as the duration of the parties’ cohabitation. A couple does not need to put their agreement to be married in writing.  Further, openly holding each other out as married can vary from telling family friends you are spouses to filing joint taxes. As you can see, this means that all aspects of a common law marriage can be grounds for extensive litigation.

The diverse forms of evidence for these criteria and the many ways that people can attempt to prove an agreement and holding themselves out as married, often require extensive hearings if the parties do not agree on the existence or duration of a common law marriage. At such a hearing judges often require rather extensive evidence and uniformity of that evidence. Thus, if you believe you are part of a contested common law marriage, Smith, Shellenberger, and Salazar, LLC can be your advocate in navigating the difficult evidentiary and proof issues involved in a contested common law marriage.

What impact will a domestic violence allegation have on my relationship with my kids?

As stated above, if your spouse has received a civil protection order against you, this order can make such tasks like discussing parenting issues and having pick-ups and drop offs very difficult. Special provisions will often have to be negotiated so the parties can continue to co-parent. Additionally, when the judge is considering the best interests of the child in determining parenting time, the judge must give consideration to the child’s physical, emotional and mental needs. Thus, if domestic violence is proven the court must take that into account and make all attempts to ensure the child’s safety and emotional well being are protected. This could result the domestic violence perpetrator’s interaction with children being limited and monitored.

Therefore, if you have been accused of or found to have committed domestic violence, it is important to contact an attorney immediately so that you can ensure the issue is addressed as fairly as possible before a family court.

Can I get divorced without an attorney?

Colorado law certainly allows and even provides some assistance for people who represent themselves in a divorce. However, despite the forms available on the court website: https://www.courts.state.co.us/Forms/SubCategory.cfm?Category=Divorce, and the minimal assistance some county courts provide, it does require a significant amount of time and effort to educate yourself, fill out forms properly, and keep track of the required court deadlines and appearances. Thus, pursuing your own divorce is something you should consider very carefully. Here are a few things to consider:

 

  • Is this a contested divorce?
  • Do you have a small or simple martial estate? In other words are your debts and assets easily defined and can they be easily divided?
  • Do you have relatively equal incomes or are not seeking maintenance? The ideal situation would be relatively equal incomes, so maintenance is not an issue, or, if there is a disparity in incomes, there are no issues of underemployment, hidden income, or inability to work, as these are often highly contentious and involve extensive evidentiary proof.
  • Do you have children? You can get a divorce on your own even if you have children, however, experience in this field has taught us that issues involving children are usually too complex for parties to negotiate purely on their own and this often devolves into fighting that ends up costing the parties, more time, money and grief in the end.
  • Do you live in Colorado? If you live outside the state there are additional steps you’ll need to take and it can be very helpful to have a local attorney handling your case for you.

 

If you have any questions about these considerations, or would like to discuss whether you should pursue a case on your own without an attorney please feel free to contact our office and schedule a consultation with one of Smith, Shellenberger, and Salazar’s experienced attorneys.

DENVER COUNTY DISTRICT COURT TO FORM THIRD SPECIALIZED ICWA COURT IN THE NATION

We are pleased to announce that Lisa R. Shellenberger of Smith Shellenberger and Salazar, LLC has been selected to be part of the committee that will create the third specialized ICWA (Indian Child Welfare Act) Court in the United States. The new ICWA Court will be established in Denver County Juvenile Court starting on January of 2017. The only other two specialized ICWA courts in the United States are Edelman Children’s Court in Los Angeles, California, and the Duluth Courthouse in Duluth, Minnesota.

Spearheading this ambitious project is the venerable Judge Donna Schmalberger in conjunction with a committee of ICWA scholars such as Nikki Borchardt Campbell, Executive Director of the National American Indian Court Judges Association, the Casey Family Programs Foundation, and attorney Lisa R. Shellenberger of Smith, Shellenberger and Salazar, LLC., a firm specializing in Native American law and tribal issues. The committee is in contact with and is working in conjunction with their counterparts in Los Angeles and Duluth to ensure the success of this project.

The new ICWA Court is being established to clear the confusion that some attorneys, judges, and judicial officers may have regarding ICWA cases, which are a specialize subset of Dependency & Neglect cases involving Indian Tribes and Indian children. The purpose of the ICWA Court is to streamline the ICWA process by establish clear policies and procedures governing ICWA cases.

We are honored that partner Lisa R. Shellenberger has been personally chosen by Judge Schmalberger as a member of the committee establishing Colorado’s inaugural ICWA Court. Partner Lisa R. Shellenberger has litigated ICWA cases on behalf of tribes and Native Americans for many years and is regarded by her peers as an expert in ICWA related issues. She is excited about sharing her experience and knowledge with the committee and is committed to ensuring that the new Denver ICWA Court is a success.

Initial Training for the ICWA Court for Judicial Staff and Officers is anticipated to begin on Thursday, October 27, 2016 with a half-day training aimed at regular participants in ICWA court such as attorneys, caseworkers, GALs (Guardian Ad Litems), and CASAs (Court Appointed Special Advocates). This will be followed by a longer full-day training on Friday, October 28, 2016.

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 is a marriage?

In Colorado you can be married two ways:

1) Through a ceremony that follows the procedure directed in the Colorado statutes or;

2) Enter into a common law marriage.

 

Marriage by ceremony is what people traditionally think of as a marriage. However, remember that a marriage does not need to be performed in a church, courthouse, or in any particular type of ceremony. Colorado has adopted the Uniform Marriage Act and under Colorado law these are the requirements for a ceremonial marriage:

  1. Marriage License.  You must get a marriage license from your local county clerk and recorder, and provide some basic demographic information.  If you are previously divorced, you must furnish proof of your divorce.  C.R.S. §14-2-105.  Though you and your husband/wife must sign the license, only one of you needs to appear in person to obtain the license.  C.R.S. §14-2-106.
  2. Solemnize the Marriage.  The license must then be solemnized within 30 days, pursuant to C.R.S. §14-2-107.  Though parties typically have a judge or a minister perform the ceremony, Colorado allows the marriage to be solemnized by a judge, magistrate, minister, or even one of the parties to the marriage.  C.R.S. §14-2-109.
  3. Register the Marriage.  The person who solemnized the marriage must complete the marriage certificate form, which then has to be forwarded to the county clerk & recorder within 60 days of the ceremony.

Also remember that in Colorado you must be at least 18 years-old to get married or have permission from a parent or guardian. C.R.S. 14-2-106.  Children under 16 years-old may marry with both parental consent, and permission

How does the Court determine who gets what?

The court will attempt to reach a “fair and equitable” distribution of property and a custody determination that is in the best interests of the children. Since family law is essentially about what is fair to all parties; even if one party is a wrongdoer in some way, the family courts are not a forum for punishment. The system is intended to allow parties to separate their finances and property and arrange for them to continue raising their children with the least conflict possible. As a result, people rarely get everything they want in a divorce or legal separation.

Thus, it is often in your best interest to reach an agreement with your spouse on any issues you can. Not only does this save you time and money, but it also allows you to make the determinations rather than a judge, allowing you to know with certainty what you will receive. Colorado law encourages parties to reach agreement on all possible issues. Thus, the court will mandate some form of mediation or settlement discussion. The county in which you are seeking your divorce and your judge will dictate when and how such mediation takes place. An attorney can be very helpful in this process. Not only can an attorney advocate for you and your interests during the mediation process, making the mediator aware of applicable law, but an attorney can also discuss with you reasonable likely outcomes of a trial.

If you have questions about how the court might resolve a specific issue in your case, please contact our office to schedule a consultation with one of the experienced attorneys at Smith, Shellenberger and Salazar, LLC.

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 can I protect myself from domestic violence during my divorce?

You can request a civil protection order. Colorado law provides for issuance of temporary protection orders upon an allegation of physical or emotional abuse. The court must then hold a hearing on the protection order within seven (7) days. At that hearing the court will determine whether the protection order will become permanent based on the testimony and evidence provided at the hearing. Protection orders can have varying terms, but often they require the restrained party to keep a certain physical distance from the other party and avoid certain locations the protected party is likely to be, like their home or work.

Note, if you have children and there are no allegations of abuse toward the children the court should not issue a protection order against the restrained party as it relates to the children. However, a protection order can still impact a number of issues related to co-parenting so it is important to consult an attorney if this is the case.

Civil protection orders can have important implications for your health and safety as well as the relationship with your spouse and children, thus it is always a good idea to consult an attorney before seeking a civil protection order during divorce. As with all issues in divorce people sometimes use allegations of domestic violence as a tool to hurt or cast their other spouse in a poor light. However, remember that if the other party can show that the allegations are fabricated or exaggerated, that will only cast the accusing party in a bad light with the court. This is another reason to contact the attorneys at Smith, Shellenberger and Salazar, LLC before taking action regarding domestic violence or trying to defend against such actions.