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Articles Posted in Child Custody

Published on:

us-capitol-1233848-300x226By: James C. McTurnan

If your Colorado child custody case involves children of Native American decent, there could be more to your case than just the ins and outs of Colorado family law. The Indian Child Welfare Act of 1978 (ICWA), a federal statutory section, addresses the rights of Indian tribes with respect to custody determinations regarding Indian children. Under the ICWA, Indian tribes have an interest in the welfare of Indian children which is independent of the rights of that child’s parents. Though the ICWA does not apply in cases allocating parental responsibilities to a Native American child’s biological parents, it could be a factor if a non-biological parent seeks custody of a Native American child.  In such cases, the ICWA gives tribes the ability to intervene in child custody proceedings and qualifying cases may be removed to tribal court.

When Congress enacted the ICWA, the Act sought to address the impact that the adoption of Native American children by non-tribal parents was having on Native American tribes. Although Colorado custody cases are generally guided by state law, Colorado courts must also follow federal law when it is applicable. The ICWA requires that Colorado courts inquire into whether the child in a custody case is of Native American descent and thereby subject to the Act. The Colorado Court of Appeals recently decided a case involving the ICWA, In re the Marriage of Stockwell, 17CA1482, which highlights the occasional tension between federal and state law which can complexity to a family law case. Continue reading

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highway-1448970By: Jessica A. Saldin

It is not uncommon for people facing the end of a marriage or break-up of a relationship to contemplate moving out of state- either for a fresh start, to be nearer to family, or other reasons.  We often have people facing a divorce or custody case asking if they would get in trouble if they leave the state of Colorado with the child(ren).  In general, as long as there are no orders in place and they have not filed or been served with a divorce or custody case, there wouldn’t be any law preventing them from leaving Colorado.  However, that is not us saying we recommend people go ahead and leave.  If people leave the state with the children, and a case is then filed, the court has the authority to order the parent to bring the children right back to Colorado.  Additionally, the parent that left with the children is often viewed in a negative light with the court.  It can come across that the person left to try to “win” at the divorce or custody case and become the primary parent.  However, if there are provable issues of domestic violence and evidence that the parent left with the children for safety reasons, the court is not supposed to make a negative inference from the person’s departure (though they can still order the parent to bring the children back).

The better course of action (actually recommended by the court in a published court decision) is for the parent to remain in Colorado, with the children, and ask the court’s permission to move as part of the case.  In initial divorce and custody cases (before final custody orders are entered) a parent wanting to live out of the state of Colorado has special Constitutional protections.  As per a Colorado child custody decision, the court actually has to take each party where he or she intends to live and allocate custody accordingly.  Therefore, it is best to remain in Colorado until orders are entered by the court, rather than leaving prior to filing or being served and risk the court ordering you to bring the children back and starting off on the wrong foot with the court.  However, this does not apply to situations where you have written agreement from the other party to take the children out of state (email, text message, signed agreement, etc.) or where you are moving but the children will stay in the state of Colorado.  In those situations the court should not have an issue with you moving prior to orders being entered. Continue reading

Published on:

leisure-1356172-300x218By:  Sarah T. McCain

In the past several years there has been a renewed focus on mental health care and those going through divorces or custody cases are not immune to those issues. It is incredibly common for a parent to seek the assistance of a therapist to discuss these often complicated emotional issues. Children are not immune to emotional or mental health issues either, especially when their parents are in the midst of high conflict cases.  If raised to a court that a child is struggling, it would not be unheard of for a professional involved with the case, such as a Child and Family Investigator, or the court itself, to suggest that a child be involved some sort of therapy to deal with the divorce related issues.  Therapy is generally seen as beneficial for children going through a divorce so that they have a third person outlet to talk to.  Until recently, parents were really in charge of the mental health process in terms of counseling, communication with counselors, access to information, etc. for children under the age of 16.   Additionally, children over 16 had their own rights as related to therapy and confidentiality.  This has now changed.

With the rise of mental health issues among children of younger and younger ages and the rise of suicide as the leading cause of death for Colorado youth ages ten through fourteen, Colorado has taken measures to ensure that children have every opportunity to access mental health assistance. 

Published on:

whistle-1505616-300x226By:  Sarah T. McCain

In cases involving  child custody, especially those of a high conflict nature, you may hear the term “PCDM” mentioned as you near the end of litigation or settlement communications. It is often the recommendations of a Child and Family Investigator or Parental Responsibilities Evaluation that open discussions regarding whether to appoint a PCDM to a case.  However, you must first know what a PCDM is before you can assess whether one would be beneficial to you and to your family before making this commitment. 

A PCDM is a parenting coordinator/decision maker. You can appoint one person to fill this role and, once appointed, they may remain in this position for a period of up to two years, though their appointment can be terminated earlier by agreement of the parties or order of the court.   Appointments generally begin following the conclusion of a case and once court orders concerning parenting time and parental responsibilities have been entered. The role of the PC/DM is actually two different roles and a person can be appointed to do either, or, or both.  Parenting Coordinators and Decision Makers have different rules, functions, and consequences (for the parties). Continue reading

Published on:

documents-1427202-300x226By: Stephen J. Plog

Having spoken with thousands of people over the years regarding their Colorado divorce and child custody cases, one common topic of discussion is that of evidence, within the context of what can or cannot be used in court.  There are many common misbeliefs about what is good evidence, meaning something the court can accept and use for purposes of formulating its ruling.   For example, sometimes people ask whether it would help for them to have friends or other third persons write letters, whether attesting to an event they’ve witnessed or perhaps as to someone’s “character.”   Each time this is asked, I am compelled to let people know that letters from third persons are not going to be helpful (generally) and are going to be considered inadmissible hearsay.  The second part of my response is always going to be that we will need the potential letter writer to attend court to testify.  The Colorado Rules of Evidence dictate what is or is not going to be admissible evidence in a divorce or child custody case.    In this blog post, I will attempt to give a basic tutorial regarding what will or won’t be admitted. Continue reading

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globe-1419902By: Sarah T. McCain

When you commence either a divorce case or a child custody case in Colorado, you will inevitably hear the word “jurisdiction.” Though this term is mentioned in more detail in other blog posts, in summary, the term is referring to personal and subject matter jurisdiction. To acquire personal jurisdiction in Colorado, there must be service in Colorado, the other party agrees to have their matter heard in Colorado, or long arm jurisdiction applies.

To acquire subject matter jurisdiction in a divorce, the court must find that one or both of the spouses has lived in the state for a period of 91 days prior to the case being filed. This is pursuant to C.R.S. 14-10-106 and 107. Jurisdiction for child custody cases in Colorado and most states (Massachusetts is excluded) is determined by the Uniform Child Custody Jurisdiction and Enforcement Act found in C.R.S. 14-13-101. This is most often referred to as the “UCCJEA.” For custody cases, only subject matter jurisdiction is necessary, which is acquired when a child resides in Colorado for 182 days, or more.  The citizenship or immigration status of a party is generally not relevant to determining jurisdiction in either a divorce or a custody case.  When dealing with international child custody issues and a child taken out of the U.S., both state and federal laws may be needed to get that child back.  Continue reading

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stork-2-1310593-300x211

A relatively new concept for divorcing couples with children is a concept known as “nesting” or a “bird’s nest” parenting plan arrangement.  

What nesting entails is the parents sharing a residence to promote stability for the parties’ children. In a nesting arrangement, the parties split time at the marital residence while the children stay full time at that same marital residence.  The appeal to such an arrangement is obvious  — the children get to sleep in the same bed every night, stay in the same neighborhood, stay in the same school, and the only adjustment they have to make is that only one of the two parents is caring for them at night instead of both parents.  In some nesting arrangements, the divorcing couple share the same “other” residence for those nights when they are not with the children, saving money.  Also economical in such an arrangement is that the parents do not need to buy extra clothes, furniture, toys, etc. for each household. Continue reading

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reporter-tools-2-1560026-300x226By: Jessica A. Saldin

Whenever there are custody issues in your family law case, one question to always consider is whether a CFI or PRE would help your case.  Prior blog posts have explained what these individuals are and when they may be helpful.  Once they are appointed to the case, though, it is natural to question what to expect after that appointment.

The very first step is to make sure the expert is made aware of their appointment- you need to make sure that someone sends the order of appointment to the expert.  The court does not typically do this, so either you or the other party need to email the order over to the expert to make sure they are aware of the appointment.  With the order, the expert also typically likes to receive any pleadings related to parenting time or the relevant issues (i.e., any prior orders, parenting plans, agreements, motions, responses, replies, etc.).

Within seven days of their appointment, these individuals must disclose whether they have any familial, financial or social relationships with any of the parties to the case, the attorneys on the case or the judicial officers on the case.  Once you receive this disclosure, if the Child and Family Investigator or Parental Responsibilities Evaluator has disclosed any type of relationship, you have seven days to object to that expert on the basis of the information in the disclosure.  If you do not object within seven days you have waived your ability to object to their appointment on the basis of that information.  If you do object, the court will then decide if someone else should be appointed or if the information does not rise to the level of needing to remove the expert. Continue reading

Published on:

gavel-5-1236432-300x200By Michelle L. Searcy

Whether you have been served with a family law case or have initiated one, in Colorado, your first court appearance will be an initial status conference.  While the purpose of this meeting is to give you important information about your responsibilities in the case, it is also your opportunity to request a Temporary Orders hearing.

The purpose of Temporary Orders is to preserve the status quo and assure that financial and parenting issues will be temporarily resolved while the case is pending.  Whether to ask for a Temporary Orders hearing requires an honest assessment of your circumstances.  If you are married, do you earn enough money to pay your bills with or without help from your spouse? If not, do you have access to enough marital money to pay the bills?  Who will remain in the house?  How will you share time with the children?  If you are both in agreement on these types of issues, you may not need a Temporary Orders hearing.  To protect those agreements, you may submit those agreements in written form, asking the court to make them enforceable orders. Continue reading

Published on:

school-4-1514478-300x226By:  Jessica A. Saldin

There are many issues related to education and school that must be considered as part of a divorce case.  Prior blog posts have discussed some of these issues.  This post is specifically focused on private schooling and how the issue may be treated as part of your divorce case.  There are several questions that you may have if you are considering private schooling for your children while going through a divorce.  

One of the first questions may be, “can I enroll my children in a private school?”  This question is related to general questions about educational decision making responsibility.  Courts in Colorado tend to find that joint decision making responsibility is in a child’s best interests unless there are specific circumstances that cause the court to find otherwise (for example, in situations of domestic violence, if one parent refuses to communicate regarding decisions, etc.).  Therefore, if you already have orders delegating educational decision making responsibility, the decision of the school in which you enroll the child must be made in accordance with the delegation in your orders.  If you do not have orders regarding decision making, it is always best to try to reach an agreement with the other parent.  Even if there is not an order requiring joint decision making responsibility, courts prefer to see parties that try to reach decisions jointly.  Simply making a unilateral decision can adversely affect the decision making orders the court eventually enters.  However, you also need to keep in mind that, if you are requesting sole decision making responsibility because of domestic violence, lack of responses from the other parent, etc., if a joint decision is made on the issue that could be considered by the court as evidence that joint decision making responsibility is best for the minor child. Continue reading