Strategically helping Colorado clients through divorce & custody cases

Articles Posted in Visitation Parenting Time

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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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calendar-series-4-1192550By:  Sarah T. McCain

Do parenting time schedules have to be the same for two kids?  The simple answer is, “no.”  In recent months, numerous articles have highlighted the divorce of Brad Pitt and Angelina Jolie.  Receiving specific attention are the allegations of altercations between Pitt and their oldest child of the six kids they share. This has seemingly (from a tabloid perspective) resulted in him seeing all of his children on a very infrequent basis, if he has seen them at all.   Not much of anything has been in the news regarding his relationships with his other kids.  Presuming that there is an issue between him and the eldest child, not of an abusive nature,  should his relationship with the remaining five children track on the same schedule as that of the elder child with whom there are problems?  No.  It is possible to have the children on differing schedules dependent on their needs and the relationship.  Of course Brad and Angelina are divorcing elsewhere, I believe California, not Colorado.   Regardless, their case can certainly be viewed through the lens of Colorado family law.

While a custody court is tasked with putting together a parenting plan in the best interests of the children, the court does not necessarily have to treat the children as a unit for parenting time purposes.  There is no one set, best parenting time schedule that is going to fit every family.  In families with two or more children, particularly of different ages, there is a chance that the children may have differing schedules with each parent.    This may be due to school or activities.  It could be due to relationship strains, or just normal development.  Perhaps the younger boy wants is ambivalent as to which parent he is with, while the 14 year old daughter feels like she needs more time with and influence from mom.   In such an instance, it may be in both kids’ best interest to have differing schedules.  If one of the kids in your household has different needs or a different relationship with the other parent, it is important to put that on the proverbial settlement table for discussion, or in front of the court, if need be.  Judges will certainly want to assess why kids might need differing schedules and the gravitational pull of the system, from a normalcy standpoint will generally be to have kids on the same schedule.  In instances in which there may be issues between one parent and a child necessitating a differing schedule from the other, it is likely a court will want any strains addressed through counseling.   At the same time, the court is generally not going to place the desire for uniformity of reality and a child’s individual needs.  I have litigated various cases over the years in which children might be on differing schedules.

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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

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By:  Sarah T. McCain

listen-carefuly-1242913Divorcing with a young child or children can be difficult for all involved, both parents and children. During the divorce or custody process, and after, it’s important for the parents to remember that children need to be allowed to be children. This means that while children may be the entire focus of the disagreement and the arguments, that they should be shielded from those arguments. This is easier said than done;  and many parents believe that it is the other parent who is at fault. Many parents unknowingly involve their children in their Denver custody or divorce cases merely by saying things in ear shot of the kids.  The impact of divorce or custody battles on your children should be considered with every statement you make to them or near them.

It’s always important to recognize the age of the child(ren) involved in your custody proceedings. As the saying goes, “little ears, big pitchers.” Even children of the younger set are able to pick up the smallest of statements. Making negative comments about the other parent to, or in front of, the kids can have a devastating impact on the case you present to the court.  One of the factors the judge is reviewing when hearing your case is the ability of each parent to encourage a relationship between the children and the other parent. Many parents believe that making these negative statements helps their cause in that they believe the minor child will turn against one parent and favor them. However, this is generally not the case and it more often than not creates confusion for the child. It’s  important to keep in mind that the minor child loves both of parents, which is what should be encouraged. Continue reading

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stock-photo-86429759-recovery-word-cloud-conceptBy Jessica A. Bryant

One significant area of concern in some Colorado custody cases is that of addiction.   More often than you might realize, allegations arise regarding drug and/or alcohol abuse by one or both parents.  When these issues arises, there are a variety of considerations, including, how to prove them, how to defend against them, and other considerations when fashioning a parenting plan.

  1. Proof: When concerns arise that the other parent in your Colorado custody case may abuse alcohol and/or drugs, it is not enough to simply appear at court and tell the judge or magistrate you have concerns regarding substance abuse.   You must be able to prove to the judicial officer that there is a problem. If the other parent has a criminal record related to drug or alcohol use (possession, driving under the influence, etc.), there are ways to obtain proof of their criminal history to provide to the court.  This can include getting records directly from the criminal case or logging onto various websites which list not only criminal charges, but also the disposition of those charges in the criminal court.

If there is no documented history of drug or alcohol abuse, you may need to request the appointment of an expert. Common types of appointed experts in custody cases are Child and Family Investigators (CFI’s) and Parental Responsibilities Evaluators (PRE’s). While CFI’s cannot complete substance abuse evaluations, they can request that either or both parents undergo drug and/or alcohol testing. For example, a hair follicle test can detect certain drugs back, approximately 90 days. You could also request, or the CFI or PRE could recommend, that one or both parents undergo an independent substance abuse evaluation. This is an evaluation completed by a trained professional, generally a Certified Addictions Counselor (CACIII), to determine whether key features of abuse are present in an individual. While a CFI/PRE conducts a comprehensive evaluation related to overall custody recommendations, a substance abuse evaluator evaluates only on the issue of substance abuse. Continue reading

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stock-photo-34813364-mother-and-daughter-talking-with-counselor-during-family-counseling-sessionBy:  Curtis Wiberg

One of the most emotional issues in a contested Colorado divorce occurs when the parties do not agree on what parenting arrangements are in the best interests of the child/children.  The concerns one parent may have about the other parent and how that concern affects the well-being of the children can be hard to prove to the Court. For these reasons, Colorado enacted two separate statutes authorizing a Court to appoint an expert to look into the family situation and make recommendations to the Court as to what is in a child’s best interest, both as to decision making (legal custody) and parenting time (visitation).

One statute (C.R.S. § 14-10-116.5) authorizes the appointment of a Child Family Investigator (CFI). In essence, a CFI is a neutral, third person charged with the duty of investigation the best interest of the children and submitting a written report, with recommendations, to the court.   A CFI is often-times a lawyer, but sometimes a mental health professional.  An advantage of using a CFI is the cost, as the fees are statutorily capped at $2,750, except in extraordinary circumstances, and are usually split between the parties.  CFI’s can be used both before final orders and after, such as in a modification situation.  In post-decree divorce cases or in custody cases, if one party is indigent, the Court can authorize the state to pay that person’s portion of the CFI’s fees.   A CFI’s investigation usually involves interviewing each parent alone, a home visit with the parent and child/children, a review of the pleadings, an interview with the child if they are old enough, a review of any questionnaire the CFI provides the parent, and interviews with any collateral witnesses like extended family, teachers, or therapists. Directives prepared by the Colorado Supreme Court govern the conduct of the CFI to ensure an unbiased and thorough investigation that is well documented, among other things.  The CFI then prepares a report of his or her findings and submits recommendations to the court on decision-making, parenting time, holiday parenting time, and if appropriate, recommendations for counseling or lifestyle changes for either or both parties. Continue reading

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stock-photo-24348836-mothers-hand-holding-kids-hand   By: Jessica A. Bryant

Over the course of roughly the last decade, Denver area custody attorneys have seen a gravitational shift in most metro area family law courts towards 50/50, equal parenting time for both parents. This does not mean equal visitation occurs in every case, but it has become more of the norm. This shift clearly indicates that the judiciary has accepted and adopted the notion that equal time with each parent is in a child’s best interest, absent exceptions. As a family law practitioner, I cannot help but ponder how soon the Colorado legislature will codify this custody trend?

In the past two years, two separate bills have been introduced in the Colorado House of Representatives seeking to establish equal parenting time as a fundamental right of parents. The first bill was introduced in 2015 as Senate Bill 15-129. This Bill sought to make significant changes to the current statute governing the allocation of parental responsibilities (C.R.S. 14-10-124). In part, this Bill sought to include the following language in the Colorado statute determining the best interests of the child: “courts should require compelling evidence before diverging from a substantially equal allocation of parental rights and responsibilities.” The Bill went even further though and specific stated that the court “shall enter an order for parenting time that awards substantially equal parenting time to each party unless the court finds, after a hearing, that substantially equal parenting time with one of the parties would endanger the child’s physical health or significantly impair the child’s emotional development.” This is a major change from the current statutory language. Continue reading