Custody
Allocation of Parental Responsibilities
As part of a custody or divorce case, the Court will address issues regarding your child(ren). In Colorado, “Custody” is called “Allocation of Parental Responsibilities” or “APR” for short. APR is broken down into three categories:
Parenting Time
Decision-Making
Child Support
Parenting Time
Parenting time is the schedule of who the child(ren) live with or spend time with. There are an infinite number of possible parenting time schedules and your schedule should be tailored to your unique situation. In general, Courts want to encourage frequent and continuing contact between each parent and the minor children.
The Court should consider “the best interest of the child” when making any decision about the children. A list of all the factors in the “best interest of the child” statute can be found here.
While the Court wants to encourage a relationship between each parent and the child, the child’s safety and their physical, mental, and emotional needs are the most important when designing a parent time schedule.
Parenting Time FAQs
My children tell me that they don’t want to see the other parent. Will their opinion matter to the Court?
It may. A child’s wishes are considered by the Court if the child is mature enough to have an independent opinion. However, the Court is not required to follow a child’s wish or opinion. There is no set age at which children can make their own decisions about parenting time.
You may have a hard time telling the Court what your child’s opinion is. The Court will not allow children to testify, and you cannot tell the Court what your children told you (that is “hearsay” or when you tell the Court what someone not present in court said).
If your child is mature and has a strong opinion about parenting time, you can either 1) ask the Court to speak to the child privately (this is called an “in camera interview” and you must request it by motion) or you can ask the Court to appoint a Child and Family Investigator. Typically, Child and Family Investigators will privately interview your child(ren) as part of their larger investigation. A Child and Family Investigator will write a report to the Court that summarizes their investigation and makes recommendations to the Court. Like the Court, the Child and Family Investigator can consider a child’s opinion about parent time, but they are not required to follow the child’s opinion or wishes in their recommendations.
The other parent is abusive and has an alcohol addiction. Will the Court require my kids to spend time with them?
The Court will likely allow some parenting time with the parent, but it may be professionally supervised or have other restrictions to make sure the children are safe.
If one parent cannot safely care for the children, the Court has many options to still allow some level of contact. The Court may order phone or video calls. The Court may order professionally supervised visits at a facility. The Court may order drug and/or alcohol testing before parenting time. You should think about what measures would make you confident your kids were safe with the other parent.
The other parent talks bad about me in front of the kids and it affects how the kids treat me. Will the Court care?
Yes, the Court will be concerned if either parent is involving the children in adult conflict and/or speaking poorly of the other parent to the children. The Court wants parents to encourage a relationship between the children and the other parent (with exceptions for true safety concerns). The Court also wants parents to put the needs of their kids before their own. Custody and separation can be stressful and emotional, but find someone other than your kids to talk or vent to.
The other parent has a new romantic partner. I don’t like them and I don’t want my kids to be around them. Will the Court prohibit my ex from bringing their new partner around my kids?
It depends, but generally no. If the Court finds that the other parent is a safe and appropriate parent, then the Court will usually trust them to decide who is around the kids on their parenting time. However, if you have specific evidence about a new partner (for example, you know they were recently convicted of felony child abuse charges) then you should tell the Court this information.
What is a Child and Family Investigator?
A Child and Family Investigator (often referred to as a “CFI”) is an impartial expert appointed by the Court to investigate the case and make recommendations about parenting time and decision-making. CFIs are neutral parties to a case; they do not represent you or the other parent. They will investigate allegations of health problems, domestic violence, substance abuse, and any other issues regarding the best interest of the children. CFIs can require parents to release (share) their mental records and other privileged documents for the CFI’s review. They will interview you and the other parent. Before Covid, CFIs would also conduct home visits and typically speak to the children privately. CFIs can also review police reports, photos, recordings, and any other evidence you believe is relevant to your children.
How do I ask for a Child and Family Investigator in my case?
You will need to file a motion requesting a CFI. You can find a template motion by going to https://www.coloradojudicial.gov/ and going to the Self Help/Forms tab. The Motion for Appointment of Child and Family Investigator (JDF 1317) can be downloaded in Word or PDF format. When you file a Motion for a CFI, you will need to submit the Order Appointing the CFI as well. This form can be found in the same place (JDF 1318).
Do Child and Family Investigators cost money?
Yes. A CFI is paid for by the parties. Low-income parties may qualify for “state pay” where the state will pay for the CFI. If you would like to see if you qualify for “state pay” you and the other parent should each fill out and submit form JDF 208 available at https://www.coloradojudicial.gov/ under the Self Help/Forms tab.
If you do not qualify for state pay, Child and Family Investigators costs $3,250.00. It is up to the Court how to divide this cost between you and the other parent.
The other parent has filed a custody case and served me. Can I move out of state with my children while the case is pending?
Not without Court permission or agreement from the other parent. Once a case is filed and served, a “temporary injunction” goes into effect, and you cannot move the children out of state unless you have written permission from the other parent or a Court order.
I’m in the middle of a custody case, but I want to move out of Colorado when my case is over. Will this affect my custody case?
Yes. When parents live far away from each other, it significantly impacts the type of parenting time schedule the Court can order. For example, if parents live 20 hours away from each other, a week on/week off schedule is very unlikely to be ordered.
If you want to move out of state during or soon after your APR case, you will need to let the Court know. If your case is pre-decree (meaning no permanent or final orders have been entered), then the “Spahmer” case applies. Sphamer states that the Court must accept the location where each party intends to live and decide parental responsibilities according to the best interest of the child under C.R.S. § 14-10-124. This means the Court has no authority to order a parent to remain in a certain location. Once you tell the Court you intend to move, the Court must create a parenting schedule using that location. Spahmer v. Gullette, 113 P.3d 158 (Colo. 2005).
It is important to note that if your case is post-decree (meaning the Court has entered a final parenting plan or permanent orders) then the Spahmer case does not apply and the Court will be applying a different legal standard. It can be harder to move out of state once the Court has entered a final parenting plan. Relocation after permanent orders is discussed more below.
Modifying Parenting Time FAQs
How can I change my parenting time orders?
If the other parent agrees with the change, you can file a Stipulation (agreement) Regarding Parenting Time Modification, a Joint Parenting Plan reflecting the change(s), and a Proposed Order (you just need to fill out the case caption). The Court will likely grant a change both parents agree to.
If the other parent does not agree with the change, you will need to file a Motion and Affidavit to Change Parenting Time. You will also need to file a Parenting Plan reflecting the change(s) you are requesting, and a Proposed Order (you just need to fill out the case caption). The other parent will have a chance to respond or object to your motion and the Court may order you to attend mediation and/or hold a hearing regarding your requested change. A Child and Family Investigation can also be appointed to investigate and make recommendations to the court about what parenting time should be.
How does the Court decide if it will change parenting time orders?
The Court will still consider the best interest of the child when deciding if there should be a change to parenting time; however, the Court must consider other factors too including but not limited to if anything has changed since the last court order, if your proposed change would affect who the child lives with the majority of the time, when the last motion to modify was filed, and if a parent has been convicted of a crime.
See the flow chart below for how the court evaluates different post-decree modifications of parenting time:
Decision-Making
“Decision-making” refers to who is making major decisions for your children. Decision-making is broken into four major categories: medical, educational, religious and extra-curricular.
Medical
Educational
Religious
Extra-Curricular
Decision-Making FAQs
What is not a major decision?
Major decision-making does not include day-to-day decisions such as minor discipline, minor medical and dental care, curfew, chores, allowance, clothing, hygiene, etc. These decisions will be made by the party who has the child(ren) at the time such decisions are necessary.
The other parent has never once been to a doctor’s appointment or parent teacher conference. How do I get sole decision-making for my kids?
Courts must decide decision-making based on what is best for the child. The Court can consider the past “pattern of involvement” (who did what) when deciding who will have decision-making power. The Court will also consider if the parents are able to communicate with each other parent in order to make decisions.
I am the victim of domestic violence. Do I have to share decision-making with my abuser?
It depends. The law states that joint decision-making shall not be ordered over the objection of a victim of domestic violence unless there is creditable (reliable) evidence that parties are able to make decisions together in a manner that is safe for the abused party. It is your responsibility to prove that the other parent has committed domestic violence against you. This can be done through your testimony, witness testimony, photos, text messages, recordings, police reports, medical reports, or other evidence.
My child has a special medical condition and the other parent has not been involved with their doctors. Can I have sole medical decision-making and share the other categories with my ex?
Yes, you and the other parent or the Court can “mix and match” decision-making in the different categories. For example, you could have sole medical decision-making, but share educational, religious and extracurricular with the other parent.
Modifying Decision-Making FAQs
How can I change my decision-making orders?
If the other parent agrees with the change, you can file a Stipulation (agreement) to Change Decision-Making, and a Proposed Order (you just need to fill out the case caption). The Court will likely grant a change both parents agree to.
If the other parent does not agree with the change, you will need to file a Motion and Affidavit to Change Decision-Making. You will also need to file a Proposed Order (you just need to fill out the case caption). The other parent will have a chance to respond or object to your motion and the Court may order you to attend mediation and/or hold a hearing regarding your requested change.
Is my motion to change decision-making time barred?
If you have filed a Motion to Modify decision-making within the last 2 years, whether or not this motion was granted, you are time-barred from filing another motion to modify decision-making. The only exception is if the Court decides that there is reason to believe that a continuation of the prior order allocating decision-making responsibility may endanger the child’s physical health or significantly impair the child’s emotional development.
How does the Court decide if it will change decision-making orders?
It can be difficult to change court orders regarding decision-making. You must show that there has been a change in circumstances or new facts since the Court’s latest order regarding decision-making. Even then, the Court will not modify decision-making orders unless you can prove one of the following:
The parties agree to the modification in decision-making;
- The child has been integrated into the family of the parent asking to change the orders with the consent of the other party and such situation warrants a modification of the allocation of decision-making responsibilities;
- There has been a modification in the parenting time order pursuant to section 14-10-129, that warrants a modification of the allocation of decision-making responsibilities;
- A party has consistently consented to the other party making individual decisions for the child which decisions the party was to make individually or the parties were to make mutually; or
- The retention of the allocation of decision-making responsibility would endanger the child’s physical health or significantly impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
Child Support
Courts follow a formula that was decided upon by the state legislature to determine child support. The main factors for the child support calculation are the gross (pre-tax) income of each parent and the amount of time each parent has with the child(ren). The Court will also consider work-related child care costs and the cost of the child’s health insurance. Other factors are discussed more in Colo. Rev. Stat. §14-10-115.
You can always contact your local Child Support Enforcement office for assistance establishing and collecting child support. Information on local offices as well as online application can be found at www.childsuport.state.co.us
Child Support FAQs
How can I estimate how much child support I’ll receive?
The Colorado Judicial website has a free support calculator you can use to estimate child support. It can be found here or go to https://www.coloradojudicial.gov/, on the drop-down menu under “Self Help and Forms” click “Self-Help Resources,” then click “Family Cases” and finally click “Calculate Support Payments”.
The other parent quit their high paying job right before I filed for custody. Will they still have to pay child support?
It depends. If a parent is not employed at all or only part-time by choice, courts can “impute” income to that parent, which means the court can pretend that parent is earning more than they actually are when calculating child support.
The Court will determine what a parent could potentially earn if they were employed full-time or employed to their full potential. The Court will then use this imputed income to calculate child support.
Courts cannot, however, impute income to disabled adults, parents who are full-time students working towards a certificate or degree, or parents caring for a joint child less than 24 months.
I am disabled. Will I have to pay child support?
It depends. You will need to present evidence to the Court about your disability and explain how it impacts (effects) your employment. If you receive any government aid based on your disability (SSI or SSDI for example), you should tell the Court. If you cannot maintain employment because of your disability, the Court will likely use your actual income for calculating child support.
The amount of time you spend with your children and the other parent’s income will also affect child support.
I am between jobs and food stamps are my only income. Will I have to pay child support?
It depends. The Court will evaluate if you are voluntarily unemployed or underemployed.
Means-based public benefits such as food stamps or SSI, do not count as income for calculating child support. Social Security Disability does count as income. A complete list of what the Court will and will not count as income can be found in the Statute Colo. Rev. Stat. §14-10-115.
The amount of time you spend with your children and the other parent’s income will also affect child support.
How can I receive child support?
Child support is typically paid either once or twice a month and can be paid directly between parents, through a third party such the Family Support Registry, or through a wage garnishment/income assignment. If you would like to have the child support paid through a wage garnishment, child support services can assist you with this.
I am the primary parent. Can I claim my children on my taxes every year?
It depends. The tax dependency exemption is based on financial contributions to the child, not time spent with the child. So, if the other parent is paying child support, they will sometimes claim the child on their taxes even if they don’t spend time with that child. The Court will divide the tax exemptions and give you and the other parent a schedule for who can claim the child on taxes. For example, some parents alternate years.
In order to claim the child on their taxes, a parent cannot be behind on child support payments. Additionally, a parent cannot claim a child if it would not result in a financial benefit.
Modifying Child Support FAQs
How do I modify child support?
Click here for a flowchart regarding how to modify child support.