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Articles Posted in Child Custody

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child-custody-300x200By:  Sarah T. McCain

With the myriad of potential new client interactions I have engaged in over the last decade, one of the most often asked requests is “I want to change custody.”  But what does that really mean?  What does it look like?  Generally, people are referring to wanting to change the primary residence of their children from the other parent to themselves.  Denver child custody lawyers know that from a statutory standpoint, this is a feat easier said than done.   To change primary residential custody, circumstances must be just right.

Modifications of parenting time (visitation) and residence in Colorado are covered under Colorado Revised Statute, 14-10-129.   Subsection (2) deals with changes in residence of a child.   There are specific circumstances under which primary residence can be changed, the easiest of which being the parents agreeing to make the change.   If primary residence is changed via agreement it is advisable to memorialize the change via a written stipulation (agreement) filed with the court.   That stipulation should set forth specific terms.   If you are the parent giving up primary residence you have the opportunity to make sure you get orders as favorable as possible to you tied into your parenting time and perhaps child support.  You are making a huge concession giving up your primary residential status and, thus, have a certain degree of bargaining power.  If you are the parent who will be taking primary residential control of the child you should ask to put things into a stipulation memorializing the new arrangement.  If the other parent resists, don’t push.    Get the child into your home first and establish a track record, maybe even a month or two.  If by that point the other parent is still unwilling to sign off on an agreement you might start thinking about filing a motion to modify on your own. Continue reading

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US-Map-300x225By:  Curtis Wiberg

Every state has adopted what is known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). In cases where parents may reside in different states, this uniform act helps establish which state’s courts have jurisdiction to make determinations affecting the custody of the parties’ minor children.

Once one state’s jurisdiction has been established and custody orders have been entered, C.R.S. § 14-13-202 provides that that state shall have “exclusive, continuing jurisdiction,”  unless….    Generally, as long as one parent remains in the state where the initial custody proceeding occurred, that state shall retain jurisdiction to hear any future custody or visitation issues concerning the minor children.  This is a basic, core provision of the UCCJEA which, in some cases, becomes impractical.

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breakfast-1457900By:  Sarah T. McCain

When it comes to parenting, even the most in sync parents have different styles. This can become even more apparent while going through a divorce or Colorado custody case, when all of your choices are under a microscope.  One area of parenting which can draw scrutiny for parents is the choice of meals given to children.  Yes, “meals.”  Dietary and food preference issues do arise in custody cases and over the years I have seen them.   These types of issues can range from dealing with a dietary medical issue to a parent being just a little too concerned about one too many Big Macs eaten during the other parent’s  visitation.  The real legal question to be addressed is whether a Judge will see the same level of concern that on parent might have and take action based on that concern.

Firstly, it’s important to recognize the eating patterns that took place during your relationship or marriage.  If the type of food provided is the same now as it was during the marriage, many complaints will not be taken seriously.  The Judge or Court will question why it was okay then but not now.  There may be a logical reason for the change in stance on diet and nutrition, but it will definitely need to be succinctly and logically explained for the Court to care.   Judges are extremely wary of people raising concerns in custody case to make the other parent look bad, as opposed to them raising legitimate concerns tied into the children. Continue reading

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the-thinker-by-rodin-1233081By: Jessica Bryant

I recently came across a news article regarding a New York custody case.    The child custody article focused on a case in which a New York judge awarded what was termed “tri-custody” over a child.  The specific background was that a married couple entered into an open relationship with their neighbor.  A child was born from the relationship, with the husband being the biological father and the neighbor being the biological mother.  Prior to any legal proceedings, the parties had agreed that the child would be raised by all three of them, including the wife, who was not the biological mom.  Eventually, though, the wife left husband to be with the neighbor.  This resulted in the husband filing a suit for custody of the child and wife filing for a divorce from him.  Husband and the neighbor agreed to shared custody, but wife filed her own case out of concern that if her relationship with the neighbor fell apart she would have to rely on the neighbor or her ex-husband to allow her to see the child.  The judge ultimately awarded the neighbor (biological mother) primary residential custody, the husband (biological father) weekend time parenting time, and the wife Wednesday nights and one week of vacation during the school year, plus two weeks in the summer. Continue reading

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right-or-wrong-1160031By Stephen J. Plog

In Part 1 of this article, I discussed the basic concept of false allegations of abuse or violence being raise in Colorado custody cases.   This included delving into some of the case specific and systemic consequences or results flowing from people making false allegations.  I also touched on the damage these types of allegations can have on children and their bonds with the accused parents.   Finally, I touched on the fact that false allegations are something that sometimes take time to deal with and, depending on the specific allegations, may require a certain amount of patience.   With years of practicing as a Denver custody attorney under my belt, I have seen enough situations to have formulated the belief that justice has a way of working things out and exposing the lies, in the end.  However, exposing lies and false allegations doesn’t just happen by chance.  In reality, it takes skill, experience, a methodical approach to ultimately refuting those allegations.

In a general sense, the burden of proof regarding false allegations will fall upon the person making them, meaning courts generally adhere to the notion that the person raising an allegation of abuse or violence had better be able to back them up.     Though the accuser may bear that burden to build his or her case up, I am firm believer in the accused taking affirmative, proactive steps to build a case for refuting those allegations.    In reality, some allegations, such as those of a sexual abuse of a child, can lead a court to take a better-safe-than-sorry approach from the onset.  No judge wants to be responsible for allowing potentially dangerous contact.   As such, they may put protections in place, initially, which have the wrongly accused feeling like he or she is already damned in the eyes of the court.   As an empathic person, I wholly understand why they would feel this way.   As a professional, I know that things will need to take their course and that ultimately those false allegations can be undone and turned around.   As indicated in Part 1, it can truly be an exercise in patience.    Between drafting Parts 1 and 2, I came across an article in which it took a man wrongly accused of child abuse over 20 years before the system acknowledged he had one nothing wrong.    This was an extreme case which ended in his parental rights being terminated, but exemplifies the tragic outcome and effect that false allegations can have on a custody case and a parent’s relationship with their children.  Below, I will start discussing how to deal with various allegations and the process people may be faced with. Continue reading

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soldier-and-child-1550984-200x300By:  Jessica A. Bryant

Serving in the military can have unique impacts on your Colorado divorce or custody proceeding ranging from questions as to the proper state in which to file, special protections for service members, and questions regarding retirement account division. In Part 1, I discussed the impact military service has on the state of filing and the protections afforded to military service members. This second part focuses on financial issues that are unique to military service and the effect deployment can have on parenting time.

 

 

 

Financials Issues

One area unique to divorces where one or both parties are members of the military is the division of retirement accounts. Military members who serve a minimum of twenty years are entitled to pension benefits. Federal law allows the Court to divide a military retirement account if a variety of factors are met. This is a very technical area but two main requirements that must be met are that the parties must have been married for at least ten years overlapping the parties military service (i.e. for a ten year marriage the military member must have served all ten years for the court to be able to order direct division of the retirement account). Furthermore the military member must reside in the state not due to military orders, claim the state as his or her state of legal residence, or agree to the court’s jurisdiction before the court has the authority to divide the retirement plan. By way of example, let’s say a wife wants to get divorced, she and her child have lived in Colorado at least six months, husband, a military member, lives in Kansas but wife was able to get him served in Colorado when he came out for a visit. In those circumstances, even though Colorado has the jurisdiction to grant the divorce, decide custody, spousal support, child support and generally divide property and debt, Colorado would not be able to order the division of husband’s military retirement account unless husband agrees. Continue reading

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right-or-wrong-1160031By:  Stephen J. Plog

When starting the practice of law almost two decades ago, the issues of truth, perjury, and false claims were something I may have heard about in law school, or perhaps seen on TV or in a movie.   Scenes of the witness on the stand or the accident victim faking injury to score the big jury verdict were as close to falsehoods permeating the judicial system as I might have seen.   Fast forwarding to the present day, I have now had the ability to witness, firsthand, individuals blatantly lying to the court.  Lies regarding child abuse in a custody case are perhaps more devastating than in any other legal arena.

As relates to custody litigation, the lies almost always relate to either abuse of a child or domestic violence.   They are usually set forth in either an emergency motion to restrict parenting time (visitation) or in a complaint for a restraining order, whether directly in the custody case or as a separate county court protection order case.   Sometimes, they might be lies told to a child and family investigator or during a parental responsibilities evaluation.  Most Denver custody attorneys represent men and women on both sides of the equation.  As such, I have represented many people, over the years, who have been falsely accused of heinous, hurtful, or disgusting acts.  As their attorney, the challenging task is to expose the untrue allegations to the court.   This is sometimes easier said than done and requires insight and knowledge into what courts are looking for and how to expose the lies.   This insight comes with both experience and good analysis of the facts and evidence at hand. Continue reading

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boy-at-park-1432810By:  Curtis Wiberg

In Part 1 of this article, I discussed some of the concerns that can arise related to exchanging children for court ordered visitation (parenting time).   This included some discussion regarding conflicts which can arise and ways to alleviate those conflicts with well written, detailed orders.  In this Part 2, I will continue the discussion by touching on additional exchange topics such as children not wanting to go with the other parent and the use of new significant others or family members for those exchanges.

As indicated in part one, the primary goal of any parenting time exchange expected by the court should be making sure the transfer of the child has as little impact on the child as possible.   This can generally be accomplished with parents either being committed to getting along in front of the child, or perhaps having no contact at all.

Sadly, some parents like the conflict, and use the parenting time exchange, including the drive to the exchange, to work a child into clinginess or a tantrum.  They might then point to the child’s upset at going with the other parent as “proof” that the other parent is unfit or a lesser parent. This is a form of parental alienation, and neither parent should use the parenting time exchange as a battleground to win your custody case. You are actually more likely to do more harm than good to your custody case if you do play games at exchanges and get called out on it. Continue reading

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PT-Exchange-300x200
By:  Curtis Wiberg

In a Colorado custody case, whether it’s a divorce or allocation of parental rights case, one of the details people often overlook in their parenting plan or orders is how to handle the parenting time exchanges of the minor children from one parent to the other. Though one might think that parents will have the ability to figure out transferring the children from one to another on their own, the reality is that without detailed language governing exchanges, ambiguity and confusion can make that which should be simple a source of debate and contention.  Because of this, it is normal for Denver custody attorneys to build in specific language regarding how and when parenting time exchanges shall occur.    There is no one right answer as to how parenting time exchanges should be conducted.

If the parents can remain relatively amicable, and open lines of communication are available, parenting time exchanges usually aren’t too big of an issue. Even in these amicable cases though, it’s important that issues like fairness in travel time and costs are considered so that resentments don’t build up.  Irregular work schedules, rush hour traffic, extracurricular activities, before and after school care, and the costs associated with these things can tax the patience of one or both parties.  On the uglier end of the spectrum, I have seen cases in which parenting time exchanges need to take place in a secure setting, neutral setting, or supervised setting, perhaps due to domestic violence, behavioral issues, or substance abuse.   Of course, these are the outliers on that spectrum.

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Parent TeacherBy:  Sarah T. McCain

When you begin the process of dividing parenting time between two homes, everyday tasks often take on different challenges. This would include, but is not limited to, dealing with the different professionals that assist you and your children, such as their pediatrician, counselors, and teachers. It is important to make sure these professionals have the very best impression of you as a parent, as it may become important should their role become a point of conflict, or should they be called to testify in court.

First, in dealing with your child’s medical care, it’s important to be involved. During many marriages, one parent deals with the care of the child(ren), notifying the other parent at the conclusion of any appointments. When a divorce is filed, we often see one parent left out and struggling to become involved. This parent is often waiting to receive the notices that they were used to receiving, only to become frustrated with the lack of information that they receive.  Sometimes, that parent may also be accused of being an uninvolved or disinterested parent.  The best way to not only receive vital information, but to also make a good impression on the court as to your involvement, is to be proactive. Find out when appointments are scheduled and try to attend. If you are unable to attend, ask for a report following the appointment.  Pursuant to Colorado statute, C.R.S. 14-10-123.8, each parent is entitled to receive information from doctors, schools, etc. Continue reading