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June 9, 2014

Colorado Custody And Relocation With Children (Part 1)

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Though we can all look back to a time when people were born and raised in one town or one state, the reality is that today's society is both national and transient in nature. People work for national companies, with multiple locations. Job transfers to new areas of the country are a fact of modern day employment and the 21st century economy. People no longer stay put in one location. Aside from employment situations, people with children may have other reasons to move from Colorado, such as acceptance into an out of state university, military reassignment, or a desire to just be closer to a family support network somewhere else. When families or couples are together or intact, these moves are just part of life and everyone jointly rolls with the changes to come. However, things can be entirely different, and moving can be much more difficult, for people either going through an initial Colorado custody or divorce case, or those wanting to move at some point after final orders are entered. As a basic premise, one must keep in mind that obtaining court permission to move pre-decree or pre-final orders can be a much easier proposition than seeking to move at some point in the future after the initial phase of a case is done.

Prior to the entry of final orders in a Colorado custody case, or divorce with children, both parents have equal rights to children and there is no specific law, per se, that prohibits one party from just packing up and moving with the children. However, once a family law case involving children is filed, Colorado statute, either Colorado Revised Statutes section 14-10-107 or 14-10-123, precludes people from leaving the state with the children while the case is pending, absent agreement from the other party or an order of the court. If a case has not yet been filed and one parent moves from Colorado with the children, there is no statutory violation under sections 107 or 123. That being said, our courts, depending on the circumstances, have the power to order the party who left with the children prior to a case being filed to return them to Colorado. This might occur in situations in which a party just left Colorado with the children, absent an agreement or notice to the other party, and the other party timely files an emergency motion requesting their return. In such instances, the court may look at how long the party and children have been gone prior to filing, whether the other party knew of their whereabouts, or other logical factors tying into whether it is in the children's best interest to come back.

Continue reading "Colorado Custody And Relocation With Children (Part 1) " »

March 9, 2014

Will Amendment 64 Affect Colorado Child Custody Cases?

flowering-cannabis-plants---hydroponics-indoors-1431036-m.jpgAs most Colorado residents know, recreational marijuana use was approved via Amendment 64 last fall. The status of marijuana in noncriminal matters, however, remains ambiguous. How will Amendment 64 be implemented? A task force was set up to recommend positions that lawmakers should take about marijuana regulation. The force did not offer a recommendation about how marijuana use should be handled in a child custody case. This could prove problematic in certain cases, but for the most part child custody cases will continue to function as before.

If a parent is not participating wisely in parenting a child, his or her poor decisions will affect the custody arrangements made by the court irrespective of whether marijuana use has influenced those decisions. For example, if a father is too busy with a grow operation and getting high to make sure a child is getting to school or taking his or her medications, his parenting decisions will be scrutinized irrespective of marijuana's legality.

Medicinal marijuana has actually been an issue in family law cases for several years. Many parents have reported another parent's marijuana use to the court in order to get the second parent in trouble. It seems clear that many people do feel marijuana use by a parent is more of a problem than drinking a glass of wine or smoking a cigarette, even though marijuana is now legal. Denver Judge Karen Ashby has noted that medical marijuana has been treated no differently over time than other substances. A parent who smokes a joint after dinner may not be treated differently than a parent who drinks a glass of wine over dinner. Both marijuana and alcohol are likely to be considered on a case-by-case basis now that both are legal substances.

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October 30, 2013

Colorado Custody: Pregnancy, Birth, and the U.C.C.J.E.A.

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Colorado custody is represented in an extensive body of law stemming from both statute and case law. The primary statutory section related to the establishment of custody and visitation is Colorado Revised Statutes section 14-10-124. Though this is the general section courts and lawyers look to, experienced Denver area family law attorneys know that there are additional statutory sections and intricacies that come to play. Though most custody cases in Colorado involve two parties who live in Colorado and intend on staying in Colorado, there are instances in which interstate issues arise. Without getting into an extensive analysis of interstate custody, this posting will focus on the issue of pregnancy, where a child is born, and how the Uniform Child Custody Jurisdiction and Enforcement Act governs custody matters in such instances.

Occasionally, though not often, our Colorado custody lawyers will get a call from an expectant mother wanting to retain legal services prior to the birth of her child. With similar frequency, we will also get calls from a potential father indicating that his former girlfriend, or sometimes wife, is pregnant, and wanting to know his rights and options as relate to custody. In either instance, the first question our attorneys will ask relates to where the child will be born and/or if the expectant mother is planning on remaining in Colorado to give birth. This question is extremely pivotal as relates to whether Colorado will even have jurisdiction to exercise jurisdiction over the child.

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, the UCCJEA, C.R.S. 14-13-102, a Colorado court can exercise custody, properly termed "parental responsibilities, jurisdiction over a child if Colorado is the child's "home state." The home state is generally the state in which a child has resided for the preceding 6 months prior to commencement of a case. For children under 6 months of age, the home state will be that state in which the child has lived since birth.

When an expectant father calls, his first question is often whether he can file a custody case prior to the birth of the child. The answer under Title 14 is "no." However, under C.R.S. Title 19, Article 4, the "paternity" statutory section, one can file a paternity case regarding an unborn child. In these instances, our attorneys are very cautious to assess what the father's wishes are. Additionally, we always ask whether he believes the expectant mother is intending to stay in Colorado during her pregnancy or if she is planning on going out of state to have the child. If the mother is planning on having the child out of state, and is not likely to return, there is really no reason for the father to file a custody case prior to the birth of the child. If the child is born elsewhere, regardless of where conceived, Colorado will not have jurisdiction over the child. Expectant fathers will often respond in disbelief when presented with the notion that they really have no say in whether the mother goes elsewhere to have the child or decides to live prior to birth of the child. Though a court, at least in a Title 19 situation, can exercise jurisdiction in this instance over the potential mother as will relate to financial issues, such as child support, the reality is that jurisdiction as to custody flows with the child, not the parents.

Continue reading "Colorado Custody: Pregnancy, Birth, and the U.C.C.J.E.A. " »

September 29, 2013

When May Non-parents Petition for Parental Responsibility in Colorado?

big-sister-first-day-of-school-1115880-m.jpgIn Colorado and other states within the United States, parents are deemed to have fundamental rights related to their child's care, guaranteed by the Constitution. However, parental rights may be trumped by a child's best interest. For example, there are circumstances in which a child's best interest may be better met by a nonparent than parent. A non-parent may petition the court for an allocation of parental responsibility only if certain conditions are met.

In a 2012 case, the Colorado Supreme Court considered the question of a minor whose parents divorced five months before she was born and who had a half-sister on her father's side. The minor lived outside Colorado with her mother until she was 3 years old when the father asked that she live with him and the half-sister.

The minor lived with the father and half-sister in Colorado for six years until the father died in 2008. At that point, she continued to live with her half-sister. For the first two years of living with her father, her mother visited regularly. But for the last several years before the father died, the mother had no physical contact, only telephone conversations and correspondence.

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May 14, 2013

Colorado Appellate Court Considers Great-Grandparent Visitation

333066_nana.jpgAn area that can present a cause for concern in Colorado child custody cases is the question of grandparent visitation. Can grandparents request visitation with their grandchildren through a judicial process just as a divorced parent asks for parenting time with his or her child? Colorado gives grandparents more legal rights than many states do, but these rights are still limited. A grandparent can bring a case to court only under certain circumstances.

Colorado Revised Statutes 19-1-117 controls this issue, stating that a grandparent can seek judicial recourse under such conditions as: (1) the parents are legally separated or divorced and there has been a child custody case, (2) custody of the child has been given to someone other than the parents, (3) the marriage of the parents is annulled, or (4) the child's parent who is the child of the grandparent dies.

Additionally, grandparents cannot sue for visitation merely because they are estranged from the parents. The grandparents bear the burden of proving by clear and convincing evidence that a parent who wants to deny them visitation is not acting in the child's best interests and also that visitation would be in the child's best interests.

Colorado courts also look at a parent's rights in these visitation cases. An unusual but instructive discussion came up in an appellate case earlier this year In re Parental Responsibilities, MDE. In that case, a great-grandmother sued for visitation under the grandparent statute when her granddaughter got a divorce.

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May 1, 2013

DENVER CUSTODY: YOUR CHILD WON'T GO FOR VISITATION. WHAT DO YOU DO?

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Denver custody and divorce attorneys see all types of cases related to child issues. This includes divorces with children, custody cases, cases involving modification of visitation, cases involving enforcement of existing visitation orders, and contempt of court cases. The parent/child relationship in one case will not be the same as in another. Though the general hope is that the bond between mother or father and the child is strong, the reality is that that bond can be strained for various reasons, whether related to the break up of the family, a child with behaviorial issues, a parent with challenges in terms of appropriately parenting, a parent engaged in child alienation, time, distance, or a child just getting older and spreading his or her wings. From a custody law standpoint, the question arises of "what do you do when your child doesn't want to go for visitation?" The answers vary, but there are steps to take to heal relationships, enforce your court orders, and to protect yourself if you are the primary custodial parent.

Though not extremely common, it is not that unusual to have a non-custodial parent entitled to parenting time indicate that a child, or children, do not want to come for visitation with him or her. Often times, the non-custodial parent will be left with no real explanation other than the other parent saying the kids are "angry," "afraid," "bored," "don't like your new spouse," etc. Of course, children are not always going to feel comfortable sharing those feelings with that parent, out of fear of hurting their feelings or upsetting them. The non-custodial parent is left in a postion of wondering what the right move is? Should they force the children to come, knowing they don't want to? Is the other parent doing something to influence the childr not to come? Will the court do anything? Court's are used to allegations from some custodial parents that the children don't want to go for visitation, for various reasons. Generally, the children's statements would be hearsay and not admissible in court. As such, the key to figuring out what is going on is counseling. Counseling in these types of situations can come in many forms. When a child doesn't want to go for parenting time, for whatever reason, one can try to get to the core of finding out why via getting the child into individual counseling?

From a problem solving standpoint, perhaps the more effective tool would be to get the child and non-custodial parent involved in reintegration or reunification counseling. This is joint counseling with parent and child designed to figure out what's going on and to work with both parent and child to get over the emotional or behavioral hurdles which have the child avoiding visitation. The sole focus of the reintegration therapy is to heal the relationship. Aside from situations in which a child is resisting parenting time, this type of counseling is also generally deemed appropriate by the courts in situations in which a parent has been absent for long periods of time. Above either parent's wishes or rights, a court wants to know that a child is emotionally safe and comfortable with visitation. As such, reintegration therapy will generally be the first, and hopefully last, step. Sadly, there are cases in which this therapy doesn't work. Neither parent or child may be willing to change their positions or behaviors. The custodial parent may be alienating the child from the other parent. These types of concerns will likely come out in the therapy and can also be dealt with via the court.

When your child does not want to come see you, the primary concern should be how to deal with things. Forcing the child in a non-therapeutic setting can only make things worse, particularly with teenagers. Additionally, parents must keep in mind that as kids get older, say 14 or 15 years of age, they will want more autonomy. Courts recognize this as well and once kids reach their mid-to-late teenage years, courts will often factor in their wishes when dealing with visitation. Again, forcing the issue can make the rift greater. With children this age, it is better to take things slowly, with the hope that they will see the light and come around once they reach adulthood. By this I mean that you shouldn't sacrifice your future relationship by forcing the issue in a highly aggressive manner today. The law affords remedies which one can avail himself or herself of. Don't give up. Just proceed with intelligence, and in a legally appropriate manner.

Continue reading "DENVER CUSTODY: YOUR CHILD WON'T GO FOR VISITATION. WHAT DO YOU DO? " »

February 28, 2013

Colorado Custody and Parenting Time Modifications Involving Complex Questions of Law

As Denver family law attorneys, the lawyers at Plog & Stein understand that life events happen after a court order is in place for child custody and visitation (referred to as parenting time). A parent's or parents' circumstances may have improved with a new or better-paying job, stable housing, or simply a good mental state. An improved status for the parent seems to equate better parenting for the child or children, but it is not always as simple as that for the Colorado court system - especially when the parties discussing custody include people who are not the child's or children's biological parents.

In the last year, an appellate decision, In re the Parental Responsibilities Concerning B.R.D., A Child, 2012 COA 63, No. 10CA2386, examined what factors needed to be present for a modification of a prior court order regarding decision-making and parenting time. In this case, the child had been placed for adoption by the mother shortly after his birth. She formally asked the court to place him for adoption and give up her parenting rights, and the couple proceeded with the adoption process. The biological father learned that he had a son several months later and opposed the adoption. The biological mother then decided to withdraw her request, causing the adopting couple to request the court that the biological parents' rights be terminated.

702367_page_curl_.jpgSubsequently the couple and the parents figured out an arrangement that gave the couple sole parental and decision-making responsibilities and parenting time to the biological parents throughout the week and weekends. The biological parents asked that they be allowed to seek modification in the future, and were ordered to pay child support to the couple. As more time passed, the biological parents grew closer to the boy and sought to have more time with him. Specifically, the father sought to have more time and greater say in the decision-making process regarding the son's life.

The lower court looked at the standard set in a case, In re Parental Responsibilities of M.J.K., 200 P.3d 1106 (Colo. App. 2008), to see whether continuing the original order that gave the couple the main care of the child and decision-making should continue. The Court found that it would not endanger the child and that it would be in the boy's best interests to keep the status quo because the change would potentially cause greater harm than benefit.

The father appealed and said that the Court looked at the wrong legal standard in its decision. The appellate body agreed and said that Colorado follows a presumption that the biological parent is a fit parent who will act in the boy's best interests. It would then be up to the couple to challenge the presumption and show that it wouldn't be in the boy's best interests for the father to have more time and decision making in put, and that it is in his interests for the order to remain in place as is.

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November 30, 2012

Making It Through The Holidays While Contemplating Divorce

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Thanksgiving has come and gone and now we are approaching the winter holidays, including Christmas and Hannukah. The holidays are wonderful times of the year for families and especially children. These upcoming days can be particularly stressful for couples contemplating divorce in the New Year, while remembering happier times.

Putting off filing for divorce until after the holidays is quite common. However, do not allow your sadness and tension to put a damper on the excitement for your children. Here are a few tips on how to make it through the end of the year.

Try and make this holiday season extra special. Perhaps being together with family during this joyous time of the year will allow you and your spouse to reconsider the impending divorce. It might be a time to sit down and consider counseling or mediation to resolve some of the issues prompting your decisions.

Most importantly, focus on your children. They are about to be impacted by decisions that you and your spouse are about to make, although they have had no input in the decision process. Allowing them to see that you both love them and are able to communicate, without fighting, will help them to accept the separation once it becomes a reality.

Go out and buy holiday decorations and decorate the house together. Go shopping and buy some of the items on the children's wish list, including something for yourself. Just remember not to go overboard. The last thing you want is to have large credit card debt added to the stress of going forward with the divorce at the beginning of the year.

If you and your spouse have joint credit cards or bank accounts, budgeting during the holidays is important so that one spouse doesn't attempt to outspend the other. It can also be a good time to begin obtaining separate banking accounts and credit cards to make the financial transition easier later.

Try doing things that are inexpensive. Consider going to your children's holiday festival at school, riding around and looking at holiday lights and displays, lending a hand to an elderly friend or relative and attending a holiday service at a place of worship of your choice. Create fun traditions that can be transitioned into your new life after the divorce is final.

The timing of filing for a divorce is never easy and going through the holidays with this on your mind can be overwhelming. Embracing the holiday traditions and focusing on making this a special time for your children can help you to successfully navigate the season.

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October 7, 2012

DENVER CUSTODY: A TALE OF TWO CASES

With many years as a custody lawyer in Denver under my belt, I have come to draw certain assumptions about the law, the court system, and how things work. Most family law attorneys use those assumptions, which are formulated with experience, legal knowledge, and a keen sense of each court, to guide them in their representation of their clients. However, as in any profession, from time to time, an attorney may hear of situations or outcomes that go against what those years of experience tell them.

In the last two weeks, I have heard of two similar Denver area custody cases, in two metropolitan area counties, with almost idential facts and two widely different outcomes. Though one might think the law is the law and the facts are the facts, the reality is that each case can be decided based solely on the specific court or judge's beliefs, perspective, and perception of the law. Though this is a fact I have known for sometime, I still try to believe that the law is the law and the facts are the facts. I guess I am the eternal optimist. I have written at least one blog posting regardng the subjectivity a court can bring to a family law case. Below, I will use the fact patterns of the two cases I heard about to give a real life example to my readers.

Before getting into each fact pattern, I will let you know that the court's, counties, and judges will not be divulged. Likewise, specifics will be altered. The gist of each scenario will not.

In the first case I heard about, the father of a child had left the state of Colorado with that child, roughly 5 months before the case was filed, and had taken the child to California. In that case, the mother had filed a Denver area custody case around the time of the fifth month. Along with the filing of the petition, the mother also filed an emergency motion indicating that father had fled with the child, concealed his whereabouts, and denied any contact. In that case, the court granted mother's emergency motion and entered an order granting mother custody and authorizing the issuance of papers for mother to retrieve the child, with the assistance of law enforcement, in California. Mother's emergency motion indicated that the child was in "emotional danger" based on being removed from Colorado and her presence. In this instance, the court granted the motion "ex parte," meaning without having heard from father. Father, upon being served with the petition and the motion, roughly two weeks later, contacted an attorney to deal with the issue. As part of the process, father filed an emergency motion of his own, indicating that he had left Colorado based on a pattern of domestic violence, had provided mother information where he was, has received mail from mother during the time in question, and had in no way concealed his presence. In scenario one, the court did not care and ordered the child returned to Colorado and mother's temporary custody.

In the other case, in a completely different county, the father left Colorado with the children, for New York, roughly a week before mother filed her custody case. In addition to the filing of the petition, mother filed an emergency motion, which contained similar language to the emergency motion filed in scenario one. In that emergency motion, mother sought an emergency order, ex parte relief, and orders regarding return of the children to Colorado. In scenario two, mother's motion was initially denied becasue father was not yet served with any of the court pleadings. In scenario two, mother filed a second motion upon father being served. In scenario two, the court did not grant mother's emergency custody motion, but rather indicated she could set the matter for a forthwith hearing roughly a month down the road.

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June 14, 2012

YOUR COLORADO CUSTODY CASE: HELPING YOUR ATTORNEY HELP YOU

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Having dealt with hundreds of Colorado custody cases over the years, I am well versed in what is needed to effectively prepare for and litigate battles regarding visitation and decision making. The key to handling custody matters truly rests with preparation. However, this preparation is not just related to your final hearing. The preparation begins from day one of the attorney/client relationship. It involves changing behavior patterns, changing ways of thinking, preparing to deal with the custody expert(s) who may be involved in your case, changes in terms of how you speak to your children, and more.

We have all heard the catchy sports proverb, "there's no 'I' in 'team'." There should also be no "i" in "attorney/client relationship," though linguistically there are technically three. By this, I mean that preparation in a custody case truly takes a joint effort. The skill of phenomenal Denver custody lawyers, with great experience and courtroom skill, is only going to go so far without the input and assistance of his or her client. Attorney and client should truly be a team in preparing to go through the custody case.

Over the years, I have arrived at the conclusion that the best results are gained for a client in a custody case when he or she is involved from the ground up in terms of preparation. As such, I strive to inform clients of various things he or she can do to help. I also make it a rule to try to prepare my clients for dealing with custody experts and getting ready for their final hearing. Below are some of the tools I employ, which are ultimately designed to help you, the client:

1. Writing out your story: A Colorado custody case is not just as simplistic as "I'm a good mom" or "I'm a good dad." Each case has a potential history to it. There may be things that were said or done related to the child, with the child, or with other people that may matter. The littlest whiff of information may have a bearing on the outcome of a case. Perhaps I am being a little melodramatic, but some fact from two or three years back can be pivotal. I see it. As such, I will often ask my clients to write me out their "story" or a chronology of the good, the bad, and the ugly related to the raising of their child. This chronology should include statements or actions of the other party, important events in the child's life, areas of concern, etc. I will generally ask people to go back three to four years. I don't need to know about Timmy's, who is 12 years old, potty training at age 4. I do need to know about his dad yelling at him and calling him mean names for getting a C on his spelling test at age 10. By putting past memories related to the child on paper, particularly in chronological fashion, a client is forced to organize, conceptualize, and contextualize his or her thoughts. This can assist the client with getting ready to testify in court or discussing the case with a child and family investigator or parental responsibilites evaluator. Additionally, it provides me with a written summary of facts I may need to be aware of or may use to the client's advantage. On a financial note, I often say, "I can read in 20 minutes what would take us 2 hours to talk about." Though I would love to talk to my client for 2 hours, I would rather save him or her money and receive the information straight from the source, with the ability to go back to it for reference as needed.

2. Keeping a journal: As indicated above, the past history regarding a child is important. Recent or current history matters as well. Custody cases can take as much as a year, depending on the county. A lot can happen during that time period. It is important to have clients keep a journal of things that occur while the case is pending. This should include behaviors or things said by the other party, as well as the child. A journal might be admissible in court. It might be shared with a custody expert. If nothing more, it is a way to record newer occurences which I, the attorney, might find relevant. I always instruct clients to make sure they keep the journal secured, such that neither the other party, nor the child, can get to it. The time period in which a Denver divorce or custody case is pending can be emotionally charged. This may be a good time to record events related to your ex behaving badly purely out of the motion that comes with this type of litigation. As with the chronology, the keeping of a journal may also help save money on attorney fees.

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January 14, 2012

COLORADO CUSTODY: VISITATION, DANGER, AND MOTIONS TO RESTRICT PARENTING TIME

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What do you do when your child comes home with a huge bruise on his or her back and an explanation that mom hit me? How will you handle your ex-husband getting a DUI with the kids in the car? What if your ex-wife is arrested for possession of cocaine? How will you handle your child coming home and saying she was inappropriately touched by her new step-dad? These are all situations that I have seen as a divorce lawyer in Denver. There is nothing more frightening to a parent than his or her child being hurt or in danger while in the care of the other parent. The question then becomes how do you deal with it?

No one wants to see a child in danger, period. This includes judges and most attorneys. Fortunately, Colorado statute sets forth procedures for dealing with true child emergencies. Specifically, C.R.S. 14-10-129(4) indicates that a party to a case involving children may file a "motion to restrict parenting time" in the event that such may cause harm to a child. Pursuant to C.R.S. 14-10-129(4), a motion to restrict parenting time may be filed if the child is in imminent physical or emotional danger while in the care of the other party. In such instances, statute sets forth that once such a motion is filed, the other parent's visitation is to immediately stop. Statute also indicates that a hearing regarding the motion to restrict parenting time shall occur within 7 days of the motion being filed. Though this sounds like a great legal mechanism for taking your child out of a dangerous situation, there are pitfalls in regard to taking this type of action, and most judges will take the language of statute quite literally.

The first step your Denver custody lawyer should take when assessing the potential for filing such a motion is to look at whether the danger, whether emotional or physical, is "imminent." For our purposes, "imminent" means immediate, meaning that the danger is current, or immediately forthcoming, with the resumption or continuation of visitation with the offending party. Parents often get hung up on what this means.

Using obvious examples, if a parent learns that the other has just been arrested for using crack cocaine while caring for the kids, or has just gotten a DUI with them in the car, such would be of immediate concern to their safey. If a child comes home with a cigarette burn or a black eye, with the story that mom or dad did it, such would be immediate or "imminent." A suicide attempt by a parent may also pose an imminent danger to a child. These are acute, ascertainable examples of things I have seen. There are other types of danger that are not "imminent." A parent may find out that the other parent snorted some coke three months ago at a party. Though certainly a concern, there is no provable immediate threat. A parent might indicate that the other parent is sleeping all day and not caring for the child. Though this could certainly be a danger, it is not of an immediate nature such that a motion to restrict parenting time would likely be sustained. Motions to restrict entail current, immediate threats of a serious physical or emotional nature. They are not to be based on concerns of long term damage to a child based on less than quality care. There are, of course, potential remedies to deal with those types of situation set forth in statute.

The next issue to assess is whether there is really a "danger" which needs to be addressed. In the family law world, danger truly means danger. Cigarette burns, physical abuse, drug use, alcohol use to the point of not being able to function, sexual abuse of a child, severe mental health episodes, or domestic violence with the children in the home are true dangers. Daddy or mommy yelling at the child are not. Daddy repeatedly telling the child he is a stupid little fu*^#er likely is. Mommy looking at internet pornography while the kids are asleep or with the other parent are not. Mommy sharing internet pornography with the child is. Daddy not doing the homework, thereby leading the child to get bad grades is not. Daddy repeatedly telling the child he cant's go to school because he thinks aliens will attack is. A spanking done appropriately is not. Bruises and welts on the back caused by a belt are. Mommy's new boyfriend having been arrested 5 years ago for domestic violence is not. Daddy shooting his new girlfriend with a crossbow is. My point is that danger can come in all forms. Though each of the scenarios set forth above is certainly not in the best interest of, nor optimal for a child, not all of them constitute a danger, or imminent danger, to the court as anticipated by C.R.S. 14-10-129(4). One must identify a true danger to his or her children prior to filing a motion to restrict parenting time.

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November 23, 2011

Tis' The Season to Be Jolly: Holiday Visitation And Your Divorce/Custody Case

Every year between late October and mid-November, people throughout the land start thinking about the holidays. The Thanskgiving turkey, and a little football. The lights, trees, and all the gifts Santa Clause will bring (or needs to buy at the store). For many people this is a magical time of year. For divorce and custody attorneys, it can be the start of an ugly season, filled with fighting, battles over what orders really mean, emergency motions (that usually aren't really emergencies), and a general lack of holiday cheer in the family law legal world.

In almost every custody case, or divorce with children, I have taken part in over the years, people are in need of holiday orders. As we all know, holidays, whether Christmas, Hannukah, or a child's birthday can be some of the most special days of the year. In any battle regarding custody or visitation, the primary issue being fought over is TIME WITH THE CHILDREN. The most sought after of all is holiday parenting time. In most instances, people are in need of a schedule delineating who will get what holiday in what year. In probably 5 instances over the years, I have seen people arrive at visitation agreements which simply state, "the parties agree that they have the abilities to work holidays out on their own, with no set schedule." That's 5 out of hundreds. I have seen a few cases in which the parties agree, "holidays will be spent with whichever party is exercising his or her regular parenting time." I have seen this language in about 4 cases. Most people need orders regarding the holidays. Most agreements, or orders handed down by a court, contain specific provisions. Despite such, problems somehow seem to arise.

After years as a practicing custody and divorce lawyer in Denver, I have arrived at the conclusion that the only way to head off holiday trouble at the pass, and to curtail the anger that wells in the hearts of litigants over the subject, is specificity. Most holiday "emergencies" arise because of either vague orders. There are times when a case is filed close enough to the holiday season that there has not yet been a chance to get before a judge. In those instances, the key is for both sides to get an agreement worked out, knowing that the court will not hear the issue before the holiday season passes.

A cardinal rule to follow is making sure that language to the effect of, "holiday parenting time shall supersede regular and vacation time," gets into every visitation order. I have seen instances in which one party will believe he or she can take a vacation with the kids during the other parent's holiday, for instances the 4th of July. The language proposed above prevents that. In essence, if it is your holiday, you get that time, regardless of whether it falls during your regular visitation or the other parties. In the last couple of years, I have seen a few foolish attorneys suggest that there should be built in make-up time when a parent loses time due to the other taking his or her holiday. This can only lead to brain damage. The most user friendly way to look at this is from the perspective of the old addage, "what comes around goes around." You may lose a day due to your ex having Easter with the kids. Invariably, your ex will also lose time when you get a holiday. It balances out.

Holidays are generally rotated or alternated. If one parent gets Christmas in 2011, it stands to reason that the other will get it in 2012. With most holiday visitation schedules, the way things get balanced is to apportion holdiays on an even year/odd year basis. I have seen people try to map out the next 18 years, picking specific years. This generally leads to disaster. To truly keep things fair, it is wise for people to set a schedule such that the few most important holidays are balanced more or less equally in any given year.

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September 15, 2011

Witness Deadlines and Your Colorado Divorce or Custody Hearing

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In Colorado, most procedural issues regarding litigation of a divorce or custody case are set forth in Colorado Rules of Civil Procedure Rule 16.2. This rule, in essence, sets forth procedure from start to finish of a family law case. Though we see most cases settle without ever having to go to a final, witnesses-on-the-stand, hearing, not all cases settle. As such, once a hearing is set, we make sure not only to mark the hearing date on our calendar(s), but to also mark down any relevant deadlines.

Sadly, not all litigants in a divorce or custody case are aware of the deadlines. Not all attorneys adhere to them either, at their own risk and to the risk of their clients. Specifically, I am referring to various deadlines related to the disclosure of witnesses or compelling a witness to testify. As family law attorneys in Denver, we know the importance of these deadlines. Missing your witness deadline may leave you precluded from having witnesses you may want to testify able to do so. Failing to get a subpoena issued in time may leave you unable to force testimony from unwilling third party.

Pursuant to C.R.C.P. 16.2(e)(3), lay and expert witnesses whom a party intends to call for a final hearing must be disclosed, in writing, to the other side no later than 60 days prior to that hearing. This disclosure includes the potential witness' name, address, phone number, and a sentence or two concerning the general content of their testimony. For expert witnesses, a copy of any report or written opinion and their resume or cirriculum vitae (fancy term for a more detailed professional resume) must also be provided. Additionally, a list of publications in the last 10 years and cases testified in over the last 4 years must also be provided. Failure to provide this information may, again, preclude your witness from testifying.

It is not uncommon for there to be joint experts in Colorado divorce or custody cases, such as Child and Family Investigators or home appraisers. As such, the strict requirements may not always be applied. However, one should always assume they will be held to the rules. It is not uncommon for people to call us less than 60 days prior to their hearings seeking our services. It is also not uncommon to see people who have not used an attorney up to that point having blown the 60 day deadline. As the Denver metropolitan area has many different courts, and many different judges, the rules are not applied the same in each court. Some judges may be more relaxed about witness disclosures, or suggest to the other side that if they object based on a blown deadline, the court will just re-set the matter for a later date. Other judges will hold a party's feet to the proverbial fire and preclude improperly declared witnesses from testifying. This can potentially make or break a case.

Parties to a Denver divorce or custody case must keep in mind that the rule applies to both lay and expert witnesses. They must also keep in mind that a lay witness, such as a neighbor, teacher, or friend, may have something just as valuable to say as an expert. Contrary to popular belief, you cannot just get an affidavit or written statement from a person and provide it to to the court. That would be inadmissible hearsay and would not come in.

Another factor to keep in mind is that it is better to be over inclusive than under inclusive when declaring your witnesses. Just because you have declared a witness does not mean you have to use that person. Whom you ultimately call to testify is your choice. Being over inclusive keeps your options open. You or your attorney can then whittle down the list as you get closer to hearing.

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September 5, 2011

Options in a Colorado custody case when you have joint decision making and can't agree

In Colorado custody law, what used to be called "custody" is now technically called "parental responsibility." The right to make major decisions for the children used to be called "legal custody." Legal custody is now generally referred to in Colorado family law circles as "parental responsibility" as relates to the making of major decisons for the children. As with legal custody, there are two options, "sole" or "joint" parental responsibility. Absent domestic violence, mental illness, substance abuse, or distance issues that make joint parental responsibility as to the making of major decisions impractical or improper, it is 90+ percent likely that parties will be awarded joint decision making authority by the court in a divorce or custody case.

Though most people are awarded joint custody, it is not uncommon for our attorneys to see people with great misconceptions as to what the term or legal concept actually means. Joint decision making entails the notion that the two parents have the ability to make major decisions jointly, and in the best interest of the children. Major decisions are things such as school choice, selection of medical providers, whether a child should have braces, and any of the other larger parental decisions that may need to be made. It does not include day to day things like whether the kids should have a hair cut, how a child should be disciplined, what they should eat, or lesser things like that. Those lesser decisions are left to which ever parent is exercising his or her visitation at the time.

Though our legislature envisioned two rational parents jointly agreeing on major issues, such is not always the case. Over the years, we have seen arguments between parties over school choice, whether braces are needed, counseling for the kids, and an array of other issues. With joint decision making, the parties have equal veto power. As such, the question becomes what are people to do when decisions need to be made, but they cannot agree? If one party goes ahead with his or her desired course of action unilaterally, he or she becomes open to being hauled into court for contempt of court proceedings (which can potentially include 180 days in jail). Thus, I strongly advise against taking the unilateral approach.

One might think that if there is a disagreement as to a major decision, the court will ultimately need to decide. There are two problems with this line of thinking. Firstly, major decisions regarding children sometimes need to be made in an expeditious fashion. In some courts, it can take months, or more, from when a motion is filed to when a hearing on the motion actually takes place (largely due to too many cases and too few judges to hear them). The second problem is that C.R.S. 14-10-123, 124, and/or 131 speak of parents having decision making authority, not the courts. Therefore, technically, a court cannot make the decision as to the issue on which the parties disagree. In theory, the court could modify decision making in whole, or in part, to end the stalemate. However, to modify decision making pursuant to C.R.S. 14-10-131, there must generally be a finding of physical or emotional danger to the child. This is a high standard and a threshhold not likely to be met in most situations. If one party doesn't cave, then both have a problem.

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August 10, 2011

BACK TO SCHOOL: YOUR DENVER DIVORCE OR CUSTODY CASE

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August and September are upon us. That means the time of year when the children start, or go back, to school. As divorce and custody attorneys in Denver, we see various issues that arise regarding school. These issues can be educational, financial, or related to aspects of a visitation or custody battle. Below are some of the topics that our experienced family law attorneys deal with:

1. School information: In many divorce or custody situations, one parent is the primary custodian for both custody and school enrollment purposes. As such, the other parent may be seen as a secondary parent in the eyes of the school. The custodial parent should always remember to list the non-custodial parent as the secondary contact on any registration or information form. Denver family law lawyers jump at the chance to show a party is not interested in co-parenting. A common bit of information those attorneys might use are school contact forms. We see parties add new boyfriends or girlfriends, grandparents, the milk man, or just about anyone besides the other parent. When knee deep in a custody or visitaiton battle, you do not want the other attorney using your failure to list the other parent against you as evidence of your inability to find value with that parent. The custodial parent should also get into the habit of mailing or e-mailing report cards, important notices, calendar and event information, field trip notices, etc. to the non-custodial parent. Both parents should be informed, and you don't want to be accused of keeping the other parent in the dark on these issues.

For the non-custodial parent, you may have orders in place regarding the custodial parent providing you with school information. This is great, but you should not rely on such alone. As a Denver custody lawyer, I see many instances in which the non-custodial parent is not kept informed about school issues, or in which he or she finds out about a concert or field trip the day before. You, as the non-custodial parent, still have power and rights. Take it upon yourself to proactively make sure you are abreast of school issues, regarless of the other parent. Make sure the office has on record that you, too, are to be informed of any signficant academic, activity, or disciplinary issues. Be proactive with the teachers. Throughout the school year, there will be grade reports, notices of activities, information on projects, and other various informative documents sent home by the teacher. At the beginning of the year, ask the teacher to specifically make sure you are provided a duplicate of all things sent to the other parents home. Sometimes these notices are sent with the children. Sometimes children lose them or the other parent forgets to share. You could get into the habit of e-mailing the teacher each week as a back up to see what, if anything, of importance came home. You should also, on your own, make sure you keep abreast of parent teacher conferences. In some cases, the parties are so mad at each other they cannot even attend a parent-teacher conference together in a civil manner. Schools are aware of this. Most teachers will accommodate you with a second conference. Again, you have the power to be on top of your child's education without having to rely on your ex. Use it.

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