One of the most contentious issues in Colorado family and divorce law is child custody. How will a court decide where the children will reside after a marriage ends?
This issue has one major guiding principle which courts must use to decide the topic: the best interests of the child. This is so ingrained in the subject that it is spelled out by law. “The court shall determine the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child…” [i]
However, merely saying “the best interests of the child” is rather nebulous. How does a court analyze this to make its determination? Again, Colorado law outlines specific criteria in a ten part test that a court must weigh to determine best interests. These include the following:
- the parents’ wishes;
- the child’s wishes “if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule”;
- the relationship between the child and parents, siblings, and any other person who significantly affects the child’s best interests;
- any reports of domestic violence involving the parent or parents and the child;
- the child’s adjustment to home, school and community;
- the mental & physical health of all individuals involved (however, one party’s disability alone cannot be a reason to deny or restrict parenting time);
- the parties’ abilities to encourage sharing of love, affection & contact between the child and other parent;
- whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
- the physical proximity of the parties; and
- the ability of each party to place the needs of the child ahead of his or her own needs. [ii]
There is a separate list of factors that a family court is specifically prohibited from considering when deciding the best interests of a child for custody purposes. These are:
- the sex of the divorcing parties (in other words, the court is to show no preference to one side or the other because the individual is a man or a woman); [iii]
- factors that would indicate bias, such as bias regarding religion, gender, gender identity, gender expression, sexual orientation, culture, race, ethnicity, national origin, or disability; [iv]
- the fact that, in the past, one party requested genetic testing to determine parentage of the child;[v]
- the fact that one parent left the marital home to escape a situation involving domestic violence [vi]; and
- the catchall provision of “[t]he court shall not consider conduct of a party that does not affect that party’s relationship to the child.”[vii]
When determining physical custody of children in divorce, courts are especially sensitive to the subject of domestic violence. Colorado law states that “the safety and well-being of the child and the abused party” is a “primary concern” of a reviewing court when it receives evidence of domestic violence or child abuse.[viii] A party coming before the family court alleging abusive conduct by a spouse must satisfy a preponderance of the evidence standard, which means the conduct more likely than not occurred.[ix]
If you are facing divorce, have children and are concerned about your future time with your loved ones, please call Mile High Legal. We can discuss your situation, provide you with options and let you know how our firm can assist you to preserve your relationship with your children.
[i] § 14-10-124(1.5), C.R.S.
[ii] § 14-10-124(1.5)(a), C.R.S.
[iii] § § 14-10-124(1.5)(a.5), C.R.S.
[iv] Id.
[v] § § 14-10-124(3.5), C.R.S.
[vi] § 14-10-124(4)(c), C.R.S.
[vii] § 14-10-124(2), C.R.S.
[viii] § 14-10-124(4)(d), C.R.S.
[ix] Id.
