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Who Gets Custody of Children After a Divorce?

Updated: 05/04/2023

Est. Reading: 4 minutes

Divorce is a stressful process no matter how civil you and your spouse may be. When minor children are involved, the divorce process can become even more complicated and emotional. Understanding child custody proceedings can help you keep a level head as you move forward.

Here we outline the basics of the types of child custody agreements. A dedicated Colorado Springs divorce lawyer can help you understand the specifics of your situation and provide support so your family can come out better and stronger. 

Determining the Primary Caregiver

Many people assume the mother automatically gets primary caregiver responsibilities. This is an outdated belief. The state of Colorado does not give bias to one party over the other. The family courts are most concerned with the well-being of the child. In most situations, an involved presence from both parents is the most beneficial arrangement for children of divorce. As long as there is no strong evidence of abuse, whether that be emotional abuse, child abuse, substance abuse, or domestic violence, the court will do its best to foster relationships with both parents. 

The courts refer to custody as parental responsibility. This can be granted to one parent, divided evenly, or divided proportionally. These parental roles are classified into two categories: physical custody and legal custody.

pacifier on blocks the spell family law, Custody of Children After a Divorce

Physical custody refers to the place where the child resides. This responsibility can be granted to one parent, primarily to one, or split evenly. The child's residence will determine their school and education and day-to-day care. 

Legal custody refers to guardianship and authority to make decisions on behalf of the child. This includes medical care, religious practices, community involvement, extracurricular activities, etc. 

Parents may choose to work together to make these decisions. They may also decide it's best that one parent is considered the primary caregiver. The primary caregiver will be able to make these decisions without having to consult the other on every choice. This can make an easier parenting plan. The primary can handle the day-to-day decisions, but still, consult the other on larger issues and care.

Reaching a Custody Agreement

The parenting plan must outline the child's primary residence, legal decision-making authority, and child support obligations. Parents may use a number of avenues to reach a child custody case agreement. If the spouses can work together amicably they may negotiate an agreement together. If they cannot reach an agreement about custody on their own, they may use mediation services or in the worst cases, receive a court order through hearings.  

FAQ: How long does it take to get a divorce in Colorado?

Informal Negotiations

Informal negotiations are the process by which parents devise a parenting plan agreement together. They may still use a divorce attorney to help them through the process. The attorney can help ensure the plan is legally binding and may help avoid complications or oversight. After they reach an agreement, a judge will review it and approve if the conditions are reasonable and fair.


If the parents are struggling to see eye-to-eye on certain issues, they may use mediation. During mediation, a neutral third party will help facilitate conversation to exchange information, navigate conflict, and achieve compromise. A mediator's job is to help de-escalate disagreements and keep the best interest of the child in mind. This is a great tool to avoid family court and a lengthy process.

Family Court

If the parents cannot reach a custody arrangement on their own or through mediation, they will have to go through family court. In this avenue, each parent will make their case for the arrangement they want and why. Legal representation is crucial at this point so one parent does not steamroll the other. Family court does not take kindly to tricks and games in this setting.

Attempting to make one parent look bad or wasting the court's time could negatively affect your outcome. Family court is also expensive and time-consuming. After assessing all of the information, a judge will create a court-ordered parenting plan that they believe is fair and reasonable. 

Sole vs. Joint Custody

Sole custody is where one parent is awarded parenting responsibilities. Joint custody is when those responsibilities are split between the parents. Physical custody and legal custody can be sole or joint. Perhaps one parent is awarded sole physical custody but they have joint legal.

mom and dad holding their kid, Custody of Children After a Divorce

This means the child would live with one parent, but both could make decisions about the care and upbringing. One parent could receive both sole physical and sole legal responsibilities. Or both parents could have joint physical and joint legal custody. 

In cases of sole physical custody, the other parent may still be awarded visitation rights. So even if the child does not live with them, they may be able to see them under legally determined conditions. 

Again, the best interest of the child takes precedence over anything else. If the child is old enough, the court may ask their opinion on how they would like their time to be shared between the parents.

Ultimately, considerations like financial situations, stable environments, typical parenting roles, the physical health and emotional health of the parents, and the quality of life for the child determine the arrangement.

FAQ: What is the best age for a child for parents to divorce?

When Does a Third Party Get Child Custody?

In certain situations, a third party may be granted parental responsibility. This happens if convincing evidence proves both parents are unfit to care for the child. This is common in abusive relationships or situations of domestic violence. If the physical health, emotional health, or mental health of both of the parents would negatively affect the child, guardianship may be granted to a family member or a representative of the state. This may also happen if one or both of the parents are incarcerated. 

If you and your spouse are entering divorce proceedings with children, seek legal counsel to help you through the process. A divorce attorney will help take care of the legal undertakings so you can spend your energy on supporting your children and yourself.  Whether you and your spouse have a civil relationship or a bitter one, an experienced colorado springs family attorney will save you time and money so you can get to a happier, healthier life sooner.

At The Law Office of Jeanne M. Wilson & Associates, we understand the emotional toll divorce can have on you and your children. If you want a strong and trusting attorney-client relationship, book your initial consultation with us today!

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