Divorce alone is an unsettling matter for everyone involved. From taking the first steps in filing the case to dividing assets, there are hundreds of details to comb through. All of the effort and energy that is put into even the opening discussions are stressful on both spouses involved. When children and parental responsibilities are involved, the stress is heightened. Most parents want nothing more than for their children to be kept out of their dispute with the other parent unless absolutely necessary.
The simple fact is that children are very much involved in the divorce, even if kept out of the court proceedings. In Colorado, the popular notion of child custody is referred to as ‘parental responsibilities’ in domestic court. The overarching understanding of parental responsibilities and custody are the same: (1) who is legally entitled to have their children and when, and (2) whether one or both of the parents get to make major parenting decisions, including things like major health and education decisions.
CONSIDERING CHILDREN’S WISHES
If the parents cannot come to an agreement on their own, a judge may determine whether the child is eligible for input. There is no set age on when a child is able to help decide which parent they would want to live with or have more time with, but it is most often somewhere around 12 to 14 years old. Children’s issues are considered by the judge on a case-to-case basis. Some children may be mature enough, and have valid reasoning, for choosing one parent over the other at a younger age than others. The type of decision being made is also a factor. For instance, a child is more likely to have a say in a decision about which school they attend than whether they should continue living with a parent struggling with major substance abuse issues.
There is a strongly held belief among most of the Colorado judiciary that, in a domestic proceeding, children should be kept off the witness stand and out of the courtroom unless there is a compelling reason or need for their testimony. The last thing a judge wants to do to families is put the children in a position where they feel as though they have to “choose” one of their parents over the other. Some judges will speak privately with the child or children if they find it necessary to do so. Other judges will not even go that far.
In the case where both the parents are unable to make the decision about the allocation of parental responsibilities, the judge will make a decision after examining a number of different statutory factors set forth in section 14-10-124 of the Colorado revised statutes and making his or her own determination about what is in the child’s best interests. One of the factors sometimes considered is the child’s wishes if the child is mature enough to have weighted input on the decision. Other factors involve considerations like:
- The relationship between the child and each of the parents
- The status quo – what has historically been the parenting arrangement
- Which parent is more able to put the child’s needs first
Specific Colorado laws regarding the allocation of parental responsibilities can be found in the Colorado Revised Statutes.
A shared allocation of parental responsibilities time is the goal whenever possible, i.e. proven to be in the child’s best interests to the satisfaction of the court. It is the job of the parent and/or his or her attorney to convince the judge that their proposed parenting plan is in the child’s best interests, and this is one of many areas where unrepresented parents are at a huge disadvantage against the other parent who has an attorney.
JUVENILE COURT VERSUS DOMESTIC COURT
In juvenile proceedings, cases that involve state intervention to protect dependent and neglected children which are governed by a separate set of laws than domestic proceedings, these types of parental responsibilities are referred to as physical custody and legal custody. Physical custody is the right to have your child live with you. Legal custody is the right to make major parenting decisions for your child. In cases of endangerment or severe neglect by one or both parents, physical custody can be awarded to a parent, another interested family member, or the state of Colorado.
When litigating a case involving children in domestic or juvenile court, a skilled family law attorney can enable you to present the information rationally and persuasively while remaining compassionate to the children involved in the eyes of the judge. Children are too often confused and hurt by divorce and custody litigation, and it is best to keep that in mind and give your children as much support as possible throughout the process. If there is anything you can do to ensure the children are feeling loved and cared for, be sure to take the extra time to do so. Divorce alone is no easy feat. Children make it even more difficult.
For outstanding Family Law representation, contact Boal Law Firm today. Attorney Brian Boal wants you to put your children first and will help you do just that by helping you achieve an outcome in court that is in your children’s best interests. Allow Brian to put his considerable knowledge and experience to work for you and alleviate your stress and uncertainty. Contact us today to schedule a consultation regarding your divorce, allocation of parental responsibilities, modification, or any other family law matters.