Part 1 of this article focused on gaps in Colorado statute related to child support. Though the law is comprehensive, it’s not perfect. Colorado family law and custody practitioners repeatedly experience situations in cases, whether divorce, custody, or otherwise, in which they say to themselves, “statute should clearly state….,” or “this gray area would be easily resolved if the legislature had only gone one step further.” I could sit in my office for hours finding various holes in our family law statutory sections, where just a little more clarity might take away some of the ambiguity that parties, lawyers, and judges face. The second part of this multi-part posting will focus on various gaps in custody and visitation laws and will also suggest potential, easy solutions to such.
1. A very common questions I’m asked is “at what age do my children get to choose who they live with or when they see the other parent?” The proper answer, under Colorado custody laws, is “there is no magical or statutory age at which kids get to decide as to custody or visitation.” In practice, most courts will generally start to give kids more autonomy around age 14. By 16 or 17, most courts will give significant weight to the child’s wishes. Regardless of age, families and children are bound by the ambiguity in Colorado law, which often leads to legal wrangling and court battles over what to do with teenagers. Pursuant to C.R.S. 14-10-129, one must technically show either physical endangerment or significant emotional impairment to a child’s development in order to change primary residential custody. What about situations in which that 16 year old come out and says, “I want to go live with mom?” Technically, if there is no physical or emotional danger at dad’s home, the change in custody should not occur. It’s time for Colorado statute to catch up to the laws of some other states. I represent clients in various states throughout the county. Many of them indicate, “well, if the child was in my state he would get to decide at age “X.” Often times I hear 14. The youngest I commonly hear is age 12, in Florida. Though a 12 year old should not be vested with deciding where to live, or what parenting time to exercise, a bright line age set forth in Colorado statute, such as 15, could cut down on significant amounts of litigation related to older teenagers. Beyond legal battles over modifying residential custody, a concrete age would also assist in initial divorce case in which there is a teenager. It would also alleviate litigation under C.R.S. 14-10-129.5 related to enforcement of parenting time orders. I’ve seen too many cases over the years in which a teenager says he or she doesn’t want to go to the other parent’s home, contrary to the court orders. These situations, sad and difficult in the first place, are often mad worse when the other parent decides to bring first parent to court for violation of the orders. Though some judges and experts recognize that the first parent cannot physically pick up that 5 foot 10 inch child and throw him into the car, some judges do not. Courts can take violations of orders seriously and such can potentially even lead to jail time. Again, a bright line rule as to age would end these battles over enforcement of visitation orders, and lighten court dockets. As one wise family law judge puts it, “a teenager is like an 800 pound gorilla and you can’t make that gorilla go where it doesn’t want to. The teenage years are crazy enough. A little clarity in statute might help take out some of the drama for all. Of course, with underdeveloped brains and raging hormones, statute would need to have caveats to full autonomy, such as might relate to substance abuse, violence, lack of academic guidance or significant mental illness in one party’s home. Absent those things, and with two good parents, a 15 year old should have a choice and parents should have clear guidance as to the law.
2. Another gap in Colorado custody law relates to cases in which one parent to an original divorce or custody case seeks to move the children from Colorado. In a pre-decree divorce or pre-final orders custody case, either party may raise the issue of wishing to reside elsewhere with the children. These types of cases are addressed in the ruling from a case called Spahmer v. Gullette, though statute is largely silent. In Spahmer, the court essentially ruled that in instances in which one of the parents chooses to reside elsewhere, the court must make a determination as to which parent is better suited to provide primary residential custody for the children, accept that each parent will be where he or she intends, and fashion visitation and custody orders from there. If Spahmer is applied strictly, the court should say the children will reside with Parent A in location X and Parent B, residing in location Y , shall have certain visitation. A strict application of Spahmer by a court could make the case essentially an all-or-nothing proposition. For example, mom might seek to move with the children to California. The court might ultimately rule that the children will remain in Colorado with dad and mom will have visitation during breaks from school and the summer, factoring in mother will be in California. Often times, the parent wishing to move away with the children will qualify his or her request with the understanding that if the court does not rule in his or her favor, he or she will stay in Colorado. However, neither Spahmer nor statute plan for this contingency. Thus, technically, a judge could rule as if the parents are residing in other states, knowing full well that the parent requesting to move will remain in Colorado if not allowed to move with the children. Though often judges or experts analyzing a removal case will set forth orders or recommendations to address if the parent decides not to move, they do not have to. Fortunately, many courts will say, “the children will remain in Colorado and parenting time for the other parent will be X, however, if that parent elects to stay in Colorado, parenting time will be Y” Clarity in statute, or case law, should be added specifically directing courts to enter orders if the parents are in two places and if the one seeking to move stays. I have heard judges state that they do not have to enter contingency orders should the party seeking to move elect to stay if the kids can’t go. Mandating such a fall back is needed, as it would give the parent seeking to have the children in Colorado the ability to simply state the kids should stay here and I’m okay with equal time. It would also allow the parent wishing to move the comfort of knowing that making that request might not lead to minimal parenting time based on the notion that he or she resides elsewhere.
3. In new custody cases, or divorce cases with children, there is a mandatory injunction indicating that neither party may remove the children from the state of Colorado while the case is pending, absent agreement or a court order. These injunctions are set forth in either C.R.S. 14-10-107 or C.R.S. 14-10-123. The filing party is bound by injunction when the case is filed. The non-filing party is bound upon being served with the petition and summons
. In some instances, a custody or divorce case may be filed after one of the parties has already left Colorado with the children. Unfortunately, statute is silent regarding how to deal with these situations as relates to whether the children should be returned to Colorado while the case is pending. I have seen cases in which a party leaves Colorado days before the case is filed, without agreement of the other party, in which a court will order that the children be returned to the state. I have also seen cases in which the court does absolutely nothing. Likewise, I have seen cases in which a party is gone from Colorado for months and the other party waits, or does nothing at all. I have seen instances in which a parent is gone, let’s say for 5 months, with his or her new location known to the other parent, in which a court enters an order requiring the children to be returned to Colorado. An order of this nature is just as unfair as the situation in which the court does nothing to help the parent who files shortly after the other parent leaves the state, without permission, with the children. Colorado statute should be enhanced so as to provide some clear cut rules centering around the respective in junctions and these situations. Statute could be clarified by perhaps indicating that if a parent leaves the state with the children and without permission of the other parent, the parent remaining in the state must make an emergency or forthwith request for return of the children within 30 days of the first parent leaving for the children to be returned while the case is pending. Statute could then go further to indicate that absent a danger issue or inability of the parent in Colorado to care for the kids, that they will be returned while the case is pending. With such clarifying language, there would be no ambiguity for the courts, or the parties, in terms of how to deal with these situations. Presuming no permission has been given, the party remaining in Colorado knows he or she has a cognizable legal remedy to get the kids back. Conversely, the parent leaving knows that he or she had better get permission prior to leaving. Additionally, children who have just moved would not be uprooted yet again, if the other parent takes no action within that 30 days. This type of clear rule would not necessarily negate either party’s rights to argue that the kids should ultimately reside primarily in Colorado, or remain with the parent who left, at the final hearing. Rather, it would just alleviate some of the emergency litigation that arises early on in some cases. Furthermore, this clarification would not water down statute already in place regarding the prevention of parental abduction, which comes with it’s own procedures and burdens of proof.
The law, including related to domestic relations, evolved with societal changes. Sometimes the readily apparent gaps in statute are not filled as quickly as practicality would call for. The next part of this article will focus on gaps in Colorado law related to divorce proceedings.