Denver Divorce Attorney Blog

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? " »

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.

Subsequently 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.

Continue reading "Colorado Custody and Parenting Time Modifications Involving Complex Questions of Law " »

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.

Continue reading "Making It Through The Holidays While Contemplating Divorce " »

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.

Continue reading "DENVER CUSTODY: A TALE OF TWO CASES " »

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.

Continue reading "YOUR COLORADO CUSTODY CASE: HELPING YOUR ATTORNEY HELP YOU " »

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.

Continue reading "COLORADO CUSTODY: VISITATION, DANGER, AND MOTIONS TO RESTRICT PARENTING TIME " »

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.

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

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.

Continue reading "Witness Deadlines and Your Colorado Divorce or Custody Hearing " »

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.

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

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.

Continue reading "BACK TO SCHOOL: YOUR DENVER DIVORCE OR CUSTODY CASE " »

As Denver family law attorneys, the lawyers at Plog & Stein, P.C. deal with all types of domestic relations cases, including custody matters. When dealing with these cases, we hear a wide array of allegations raised by one party concerning the other. This can include allegations regarding past criminal acts, drug use, domestic violence, and more. An issue often raised relates to mental health.

Just as ADHD became the diagnosis dejure over the last couple of decades related children and learning disabilites, our attorneys would be rich if they got a dollar for every time one party or the mentioned the terms "bi-polar" or "Prozac." Prior to speaking with an attorney, many people engaged in a custody battle presume that the other party having some sort of mental health diagnosis is going to be a slam dunk when it comes to litigating custody or vistiation. Generally, they are wrong.

C.R.S. 14-10-124 sets forth certain criteria related to determining parental responsibility (custody). One of those factors is the mental health of all individuals involved. This does not mean that a court is going to automatically find a mental health issue, such as bi-polar disorder, to be a block to someone having custody or visitation. Most custody lawyers know that the courts are really looking at how the specific mental health issue is being dealt with.

One must keep in mind that there are a wide array of mental health issues we see in custody cases. We have seen cases in which bi-polar disorder is so severe that unsupervised visitation is just not safe. We have seen cases in which people imagine they are being followed or that there are sinister and other-wordly apparitions in their homes. We have heard stories of people licking and yelling at televisions. In all of these instances, there was one common factor. The diagnosed or undiagnosed mental health issue was not being treated.

Assuming someone is seeking treatment for his or her mental health condition, including taking prescribed medications, and assuming the treatment and meds are working, most courts are not going to find the mental health diagnosis to be an issue precluding custody or visitation. However, if that person is not following through with counseling or meds, particularly if there is a court order to do so, then the court may have concerns to the point of even restricting visitation or making it supervised until the problem is dealt with.

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As a custody attorney in Denver, I have handled hundreds of child related divorce and custody cases over the years. Some have gone to trial, some have settled. One of the initial determinations a family law attorney in Colorado needs to make is whether a custody expert is needed for purposes of investigating and reporting to the court as to the best interest of the children.

The attorneys at Plog & Stein have almost always recommended the appointment of an expert in cases in which residential custody or visitation are a significant issue. Judges can't go out into the real world to sit with families, interview children, or get a true feel for what is going on with a family. Fortunately, statute makes provisions for the appointment of such experts to help get to the bottom of what kids needs. In many instances, a well written expert report can ultimately lead to settlement of a divorce or custody case, thereby saving the parties time and money.

Pursuant to C.R.S. 14-10-116.5, at the request of either party, or upon its own, the court can appoint what is called a Child and Family Investigator, referred to by us attorneys as a CFI. A CFI is a neutral third person, generally with a mental health background or an attorney with specific training, who investigates all contested aspects of a custody battle, including those in a divorce, and makes written recommendations which are tendered to the court. The CFI will meet with parties and the children, separately and together, as well as talk to outside sources, such as friends, family members, teachers, etc. in arriving at their conclusions. Courts are extremely likely to adopt the major aspects of a CFI's recommendations. As such, it is very important for your Denver family law attorney to be familiar with the array of CFI's in the metro area in terms of knowing what they are looking for, there viewpoints on mothers and fathers, etc. If a CFI is appointed, the outcome of your custody battle largely rests in his or her hands. As such, it is extremely important for your Denver family law attorney to inform you regarding the process, the things to say, and the do's and don'ts for dealing with this person. There is generally a charge for CFI's, unless the court authorizes the state to pay due to indigency of the parties.

Until April 2011, CFI investigations ranged in cost from $2000 to as much as $10,000 or more. Staring in April 2011, the Colorado Chief Justice issued new guidelines or rules indicating that CFI fees would generally be capped at $2000. This is great from a monetary standpoint. However, the fee cap, coupled with a loss of quasi-judicial immunity, led to a mass exodus of some very experienced and qualified CFI's from the ranks of those continuing to do investigations. There are still some good ones left. Qualified mental health CFI's used to be able to also do psychological testing (which in my opinion was rarely helpful), today they are not. If a person with money did not like the results of a CFI investigation, he or she might ask the court for the subsequent appointment of a Parental Responsibilities Evaluator, PRE to us lawyers.

As indicated above, PRE's used to be sought generally after one party or the other did not like a CFI report. With the April 2011 changes to the CFI rules, many of the mental health professionals formerly doing CFI work are now exlusively doing PRE evaluations. Parental Responsibility Evaluations are authorized pursuant to C.R.S. 14-10-127. Unless a court finds specifically that the PRE is sought for purposes of delay, it must grant a request for a PRE. A PRE is generally a heightened CFI investigation, which can include psychological testing. Attorneys are not doing PRE's, just mental health workers who are qualified. As they are more indepth than CFI investigations can now be, PRE's may be a good thing and the new way to go. The problem is that most evaluators want between $5000 to $10,000 down to get started. The average person cannot afford this.

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As a divorce attorney, Denver has been a diverse area to practice family law in over the years. Though cases and people are different, there are many themes that recur over and over again, whether the parties are from Aurora or Greenwood Village. In divorce cases with children or custody cases, a common issue that pops up time and time again is that of new significant others.

Though I'm sure things were different way back when, today it is not uncommon to see a new boyfriend or girlfriend in the picture before a divorce is even done. Sometimes people are even engaged to be married again before the ink is even dry on their divorce. I am not passing judgment on those people; I am just stating something the custody and divorce attorneys at Plog & Stein see. Imagine raising your kids, just you and the other parent, for years and years. You have had the opportunity to play an integral part in their upbringing, their habits, their discipline, and formation of whom they will be as they get older. Then suddenly one day, there is a stranger, a new parent-like influence in their lives. Naturally, most parents are going to be concerned, at least initially.

From a human standpoint, an initial, often-unspoken fear is whether the kids like the new person too much? Will the new boyfriend or girlfriend be a Disneyland type influence, thereby making me look bad when I act as a parent and discipline the kids? The more commonly raised concern is "my kids don't like his new girlfriend, she's mean" or vice versa. What can I do? In our Denver area custody, or divorce cases, we generally don't see courts getting too shocked or too upset at the notion of new significant others becoming involved in kids' lives. Clients will often ask, when is too soon? There is no black and white answer. Kids should not have added confusion or stress in an already confusing time, and some courts will take that into consideration.

Of course, safety issues come into play with new significant others. Are they nice to the kids? Are they abusive? Do they have a criminal record for domestic violence, drugs, crimes of a sexual nature, or anything else that might make them problematic around children? Will they say negative things about me in an attempt to affect my relationship with the kids? Do they have children of their own? How will those kids treat my kids? All of these are valid questions frequently asked of our family law attorneys.

When drafting your Colorado divorce or custody agreement, or before a judge seeking orders, there are a few things you can ask for to help alleviate some of the fears or concerns regarding new significant others:

1. Insist upon orders that each party will provide the full name, birth date, and a driver's license copy for all new adults who will be a significant part of your kids' lives. This should not only include new significant others who might move in, but roommates. Once can never be too cautious; we have seen cases in which the other party gets a roommate after the divorce that turns out to be a sex offender. You certainly also want to know if this person has had legal trouble related to drugs, violence, or domestic violence.

2. In terms of conduct around the children, often times attorneys will build language into agreements that neither parent will speak negatively about the other in front of the children or discuss case related adult or financial issues. You can go the extra step in drafting an agreement by also adding language to the effect of "both parties shall have an affirmative duty to remove the children from the presence of any third person engaging in such behavior." The court does not have jurisdiction over third persons. If does have jurisdiction over the parents and can create duties to shield your children from what third persons say. If you have concerns about the substance or alcohol use of others who will be around your children, you can also ask for language that the same duty to remove the kids applies to instances where they might be around people who are intoxicated. These are just words, but at least people are put on notice. Words can also be enforceable court orders.

3. A third area in which the presence of a new significant other can be troubling for parents relates to discipline. Most courts in divorce or custody cases view discipline as something for the parents, not new boyfriends or girlfriends. We have seen cases in which a new significant other has tried to assert herself or himself in a parental disciplinary role. This can be problematic and often causes ill feelings. This is particularly true when that discipline becomes physical. Only one time have I seen a judge advocate physical discipline, such as spanking, even when it's the parents. The involvement of new love interests in the discipline of your children can be curtailed greatly by adding cautionary language to your agreement, such as "the parties agree that neither shall allow any third persons or new significant others to engage in the disciplining of the children. Discipline for significant behavior issues shall be discussed between the parents and implemented solely by the parents." Again, no jurisdiction over the third person, but a duty placed on the parents.

Though parties cannot have control over their ex's moving on and finding someone new, they can create some protections to alleviate some of the concerns that new significant others in the kids' lives can bring. Certainly, Denver area family courts will deal with true safety or danger issues related to new significant others. Your Denver area divore or custody attorney can help you lessen or prevent some of those concerns for your children that don't quite rise to that level.

As a Denver area custody attorney, I am often faced with questions from both sides of a case regarding what people often refer to as "50/50 custody." It is quite often that people indicate they want "50/50" or state that they're fighting against their ex who wants "50/50." Ironically, in the same sentence, some people ask, "what does that mean?"

Keeping in mind that the term "custody" is no longer used in Colorado, people often ask about "50/50" or "equal custody" related to what we attorneys call "parental responsibility" or "decision making." By this, I mean the right to make major decisions for the child. This generally relates to major decisions regarding health, education, medical care, religion, and the general welfare of the child. The reality today is that most family law courts in the Denver metropolitan area follow the presumption that joint decision making or "50/50" legal custody is in the best interest of the children. Thus, I often say that barring instances of substance abuse, domestic violence, severe mental illness, or a demonstrated apathy towards making decisions, people will end up with joint or equal decision making. Battles over decision making or what used to be termed "legal custody" are not as common today as they were in the past. I believe the word is out that, barring extreme circumstances, the court will make it joint.

Once the joint decision making is ordered, parties to a custody case, or divorce with children, must still understand how it works. In essence, if one party believes that Timmy needs a tutor or Sally needs braces for cosmetic reasons, that party must confer with each other and the presumption is that they will agree on the issue. If they do not agree, each party has equal veto power. Thus, at times, court battles can arise over what decision is proper. Technically, a court cannot make a major decision for the parties. It can potentially change decision making, perhaps even as to that one issue, so that the child can get what he or she needs.

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Over my years of practice as a Denver area divorce and custody attorney, I have become familiar with the tenets of Colorado statute regarding interstate custody issues. Whether in a divorce or custody case, when interstate custody issues arise, the primary relevant statutory section is what is called the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA to us family law attorneys.

The UCCJEA is codifed in Colorado statute as C.R.S. 14-13-101 et. Seq. The UCCJEA sets forth various rules and guidelines for dealing with interstate custody cases. The major ones are as follows:

1. An original custody action shall be started in the child's "home state," which is the state that the child has resided in for the 6 month time frame just before the case is filed. Temporary absences from the home state do not count against the 6 months. Additionally, you can still file for a child under 6 months of age.

2. For purposes of modifying visitation or custody orders, the originating state, meaning the state in which orders were originally entered, generally retains jurisdiction so long as the child or one of the parents remains in that state. In certain instances, if the child has been gone so long from the originating state that it is no longer a "convenient forum," then the originating state may give up jurisdiction.

3. If both parents are gone from the originating state, then jurisdiction would follow the child to his or her new "home state."

4. Emergency jurisdiction can be sought in another state where the child may be, provided the court in that state finds there to be a true emergency warranting a temporary/emergency exercise of jurisdiction.

Though these seem like simple rules, it is not uncommon for family law attorneys to be preplexed or confused when faced with certain facts for a client. If your divorce or custody case involves interestate child issues, it is important for you to find a Denver area attorney with a firm grasp of the UCCJEA. The attorneys at Plog & Stein are familiar with and adept at handling these UCCJEA cases. We have seen cases over the years in which a party or attorney wrongly files a case in Colorado when jurisiction clearly rests in another state. In those instances, we do not hesitate to seek dismissal for lack of jurisdiction.

Aside from wanting your case completed in a timely manner, it is never fun to spend money on a case only to see it dismissed because interstate jurisdiction was not proper.
At Plog & Stein, we strive to thoroughly assess all aspects of any interstate custody case or divorce involving children.