Parenting Time in Divorce

• Publication year: 2002
• Pages: 25
• Citation: Vol. 31 No. 10 Pg. 25

31 Colo.Law. 25 Colorado Lawyer 2002.

2002, October, Pg. 25. Parenting Time in Divorce

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25

Vol. 31, No. 10, Pg. 25

The Colorado Lawyer
October 2002
Vol. 31, No. 10 [Page 25]

Children and the Law

Parenting Time in Divorce
by Joan H. McWilliams

Joan H. McWilliams conducts a full-time dispute resolution practice in domestic and commercial conflicts, providing mediation, arbitration, and other types of dispute resolution services through her firm, McWilliams Mediation Group Ltd. - (303) 830-0171. The author gratefully acknowledges the contribution of Dr. E. Robert LaCrosse to the portion of this article that discusses the new research on parenting time schedules

"Dividing" the children in a dissolution of marriage is an emotional and traumatic process. When common sense prevails, the parents, based on their intimate knowledge of the family situation, are able to design a parenting time schedule that allows their children to thrive in each of their homes. In some cases, however, judicial intervention is necessary, and the parties are required to argue statutory factors and consider the use of a special advocate or legal representative. This article discusses the factors to consider in determining and enforcing parenting time plans, in using a special advocate or a legal representative, and in modifying existing parenting time orders

Determination of
Parenting Time

Parenting time schedules are determined in accordance with the best interests of the children, giving paramount consideration to their physical, mental, and emotional conditions and needs.1 The law supports continuing contact between each parent and the children of the marriage.2 In fact, parents are statutorily urged ". . . to share the rights and responsibilities of child-rearing and to encourage love, affection, and contact between the children and the parents."3 These are the goals that a judge must follow in making parenting time decisions and that parents should consider in designing a schedule for their children

If the parents are unable to agree on a parenting time schedule, a court may make provisions for parenting time that are in the child's best interests unless, after a hearing, it finds that the parenting time would ". . . endanger the child's physical health or significantly impair the child's emotional development."4

In determining the best interests of the child for purposes of parenting time, the court is required to consider all relevant factors, including:

1) the wishes of the child's parents as to parenting time;

2) the wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;

3) the interaction and interrelationship of the child with his or her parents, siblings, and any other person who may significantly affect his or her best interests;

4) the child's adjustment to his or her home, school, and community;

5) 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;

6) the ability of the parties to encourage the sharing of love, affection, and contact between the child and each of the parties;

7) whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;

8) the physical proximity of the parties to each other as this relates to the practical considerations of parenting time;

9) whether one of the parties has been a perpetrator of child abuse or neglect under the laws of Colorado or under the law of any state, which factor must be supported by credible evidence;

10) whether one of the parties has been a perpetrator of spouse abuse as defined by statute, which factor must be supported by credible evidence; and

11) the ability of each party to place the needs of the child ahead of his or her own needs.5

The foremost priority in resolving parenting time disputes is to minimize the detriment to the child. The concept of the "least detrimental alternative" is subsumed within the concept of best interests of the child.6 Parenting time may not be restricted merely because of the sexual orientation of a parent.7 Also, a judge may, subject to certain statutory guidelines, interview a child in chambers to ascertain the child's wishes regarding parenting time.8 In applying the above standards, advocates historically have relied on the book, Children of Divorce,9 in which the authors, Carla B. Garrity and Mitchell A...