When a Colorado Court is confronted with Parents who disagree about what is the best custody (now called a “parenting plan”) arrangement for their Children, the law requires the Judge to determine a parenting plan “in the best interest of the child”.
The difficulty for the Judge, of course, is that both Parents believe they are better than the other; and, both Parents ostensibly want what is best for their Children. To choose between competing parenting plan proposals, the Judge must look to the statutes that provide the criteria to make such an assessment. Under Colorado law, the Colorado Revised Statute 14-10-124, provides the following factors as guidance when determining a parenting plan.
- The wishes of the child's parents as to parenting time
- The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule
- The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests;
- The child's adjustment to his or her home, school, and community;
- The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
- The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party's protective actions shall not be considered with respect to this factor;
- 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 to each other as this relates to the practical considerations of parenting time;
- The ability of each party to place the needs of the child ahead of his or her own needs.
The wishes of the child's parents as to parenting time seems self-explanatory. What are each of the Parents requesting? Easy enough. However, what each SHOULD be requesting is often a matter of strategy—dependent upon the needs of the Child, the Parent’s schedule and the many variables that Parents must consider when raising a Child as well as the posture of the case before the Court. An attorney should be guiding a Parent’s choice through information that provides likely consequences of each choice—so the Parent may make the choice that is right for their Children and for themselves.
Let’s dispense with one myth—the myth of “sole custody”. In Colorado, Courts almost never rule in favor of “sole custody”. Sole custody—meaning no parenting time and no decision-making by the other parent--is rare. It usually involves a Parent who does not wish to be involved in a Child’s life or a Parent who poses a danger to the Child. Even with “sole custody” that involves a Parent who may be dangerous, a Court may still order “supervised” parenting time. Parents often ask for “sole custody”, yet they mean they want to be the “primary parent” which is the Parent with the majority of parenting time. If the Court does not order 50/50 parenting time, one Parent will become the primary Parent exercising the majority of parenting time. So, the choice is really 50/50 or something else. That “something else” can be as the primary parent or not as the primary parent—it is for the Parent and the Court to decide.
If a Parent does not have the ability to exercise 50/50 parenting time or if the other Parent insists they be named the primary parent, the Court will have to hear each Parent’s position and decide. This means the Parents must—to some degree no matter how amicable—criticize and/or disparage each other. The Parent wanting primary designation must show the Court that they are the better parent; and, this requires showing that the other parent is not as good or not as committed to parenting. Sometimes the dispute over who is the better parent is an epic battle, resulting in deep scars and tremendous hurt for all involved. Sometimes, if a Parent is willing, the dispute can be presented in a way that does not disparage the other Parent too heavily.
When a Parent requests they be named the primary Parent, there may be a good reason. The other Parent could be dangerous to the Child. An unstable lifestyle, carelessness, addiction to something that interferes with good parenting or a Parent’s history of willful lack of involvement or disinterest can all impact parenting. These cases call for recitations of facts and circumstances that are usually unpleasant, sometimes shocking, often very disparaging and always disappointing—especially to the Child. However, the safety and well-being of a Child should not and must not be compromised simply to lessen the conflict or to please the Court. Sadly, battles may be necessary and only the Parents can soul search sufficiently to decide if what they are doing and saying is true, necessary and in the best interest of their Child.
Nasty battles are not inevitable, though, even when one Parent wants to be designated the “primary Parent”. For example, a Parent may request primary parenting due to factors that are not necessarily disparaging to the other Parent. Work schedules that have caused the Parents to devote different amounts of time to the Children, can be the focus of a dispute between two very fine Parents. Each accuses the other of not playing fair and mischaracterizing their genuine love and devotion to the Children. Judges are savvy, though, and understand that couples often take on roles that they, together, have determined fit their lifestyle. The Parent whose work schedule keeps them away from the Child more than the other may be no more at fault for being less committed on a day-to-day basis, than the Parent who is a stay-at-home-parent. The working parent allows the other to stay at home and this is seen as a joint decision the Parents made together. The Court is not likely to see the working Parent at fault. The Court will recognize, though, that the stay-at-home Parent needs reassurance that the working Parent can handle the Children on their own and can devote their time and energy just as the stay-at-home Parent has done.
Why would a Parent want to request 50/50 parenting time from the Court? Why not try for majority parenting every time? After all, the Parents are in Court asking the Judge to decide custody. So, this means the Parents were unable to settle their custody disputes; and, it is hard to deny that a custody battle is being waged. The answer to why 50/50 parenting may be what a Parent wants to request is simple. Kids need and want both Parents in their lives—even if the Parents can’t stand to be around each other. Another equally important reason to request 50/50 parenting time is that Courts prefer it and pleasing the Court may give a Parent an edge over the other.
Requesting 50/50 parenting time sends a positive message to a Court. 50/50 parenting time means the Parent wants to allow the Child equal time without having to choose between the Parents and without having to feel guilty about one Parent not getting enough time. The Court knows that even though it is not their fault, a Child feels guilt when they are the subject of something that is disappointing to their Parent. Requesting 50/50 parenting time sends the message to the Court that a Parent wants to work with the other Parent and values what that Parent has to offer to the Child. In spite of the pain of divorce or a custody case, that Parent is able to put their anger and disappointment aside and do what is best for their Child. That Parent is seen as wanting to act civilly, cooperate with the other Parent and refusing to make their Child’s life miserable by waging war with someone that Child loves and wants to please. Especially in high conflict cases where the parties wage a battle over every issue, requesting 50/50 parenting time sends a message of calm and cooperation—exactly what Courts want to see from divorcing Parents.
Consulting with your attorney about why you want a certain parenting plan is of paramount importance. The attorney should, based on the facts of your case and its posture before the Court, discuss the likely consequences of your choices. While the attorney cannot see all ends, informing you of “likely” consequences allows you to make choices that are in your best interest and, most importantly, the best interest of your Child.
Factor number XI.
The ability to place the needs of the Child ahead of a parent’s own needs, is used by attorneys to show that a parent has acted in a child-centered way (building their lifestyle around the needs of the Child) or, that the other parent has made decisions that were not for the sake of the Child. When one parent decides to live an hour away from the Child’s school and from the other parent so they can be with a new girlfriend or boyfriend, the Court may be critical of this decision. The distance the Child will have to travel for anything that involves this parent, will unreasonably inconvenience and may isolate the Child. Friends at the far away parent’s home are not easily accessible and school attendance and activities are made more onerous and unlikely by a long commute. It is not unusual for a Judge to think and even say “I understand why you did what you did…but you didn’t do it for your child. You did it for yourself.” The attorney capitalizes on the Court’s thinking process by portraying the far away parent as less caring, less involved and not as worthy of parenting time as the parent who stayed close-by the school and the Child’s friends.
(I) Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
(II) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;
(III) Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties.
The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.
Determining the wishes of the Child at the center of a parenting dispute, is trickier than most believe. Parents often think their Child can appear in Court and tell the Judge where they want to live and with whom they want to live. Parents often also believe that there is a law in Colorado regarding at what age a Child may make this decision. Neither belief is true. Children rarely, almost never, testify in Court. Judges know that forcing a Child to testify—even if the Parent insists the Child “wants to testify” -- would likely be emotionally devastating to the Child. There is also no specific age designated in Colorado law at which a Child may “choose” with which Parent they wish to live. The Child’s own statements to a Parent or grandparent or teacher also cannot be used in Court—no matter how compelling. With few exceptions, such statements by the Child (“Daddy, I want to live with you, Mommy’s mean to me…”, “Mommy, I don’t want to live with Daddy…”, etc.) because these would be “hearsay” evidence. Hearsay evidence is a statement of a third-party offered to prove the truth of the statement.
Parenting Experts for Court
So, how does the Court hear the information needed to determine the wishes of the Child? Usually, a parenting expert, like a Child and Family Investigator (CFI) or a Parental Responsibility Evaluator (PRE) must be appointed, investigate and make a recommendation to the Court as to the parenting plan. The parenting expert may convey the statements of the Child to the Court as part of the reason for the recommendation and those statements will be included in a report filed with the Court. Because Colorado law provides for these parenting experts to be appointed by the Court, they may convey the statements of the Child without those statements being “hearsay” evidence. A Child’s Legal Representative (CLR)—also known as a “Guardian Ad Litem”—may also be appointed and this person can speak for the Child and convey the Child’s statements to the Court. However, no report accompanies the Child’s Legal Representative recommendation.
All three parenting experts can help the Court determine what is in the best interest of the Child. They will have spent time with each Parent separately and with the Parent and Child together. They will conduct a home visit to understand the household dynamic and suitability. They will reach out to “collateral contacts” who can provide information regarding the Child, the relationship the Parents have with the Child or any special issues that have arisen.
The down side? Parenting experts are expensive, time consuming and can extend the litigation simply because the time required to complete the investigation. The adversarial process further inflames hostilities and almost always frightens Parents into believing they are locked in an epic battle. Each Parent lobbies the expert to gain favor and present the other Parent in a negative light. Throughout this process, the Child is caught in the middle—often knowing that a Parent is upset, and the Child is the cause. Another down side to having a parenting expert is that the Parents cannot realistically control what their Child tells the PRE or CFI and statements from the Child may not be favorable. A Child who is honest with the expert, may not say what a Parent believes they will say. Also, a Child who has been “coached” is usually evident by what and how they say something. Coaching statements always backfires. In any event, whatever the parenting expert recommends—and why they make that recommendation—will be before the Court and is very persuasive upon the Court.
Sometimes, a Child’s behavior—rather than their words--can be used as evidence of their wishes. A Child who acts out only with one Parent but not the other, may be conveying a message of despair, fear or anger. Such assumptions, though, must be carefully analyzed as motivation to behave a certain way is influenced by many factors—not just who the Child is with at the that time. A Child who cries and does not want to go with one Parent at the exchange, may simply be relating that the whole exchange situation—where they are leaving a Parent-- is sad, they hate leaving either Parent and they wish they didn’t have to go through the ordeal.
When determining the wishes of a Child in a custody situation, the attorney and Parent must work together to determine the facts, including the wishes of their Child as to parenting time, and how to best present those facts. Open communication between attorney and Client and an honest analysis of the application of the facts and law, will assist the Parent better understand what can be achieved in the best interest of their Child.