Chapter 4 - § 4.5 • DETERMINATION OF PARENTING TIME
| Jurisdiction | Colorado |
There is no presumed parenting time, nor default parenting time, for a child in the State of Colorado. The Colorado General Assembly has, in fact, rejected any statute reflecting a default schedule or a preferred option. See SB 15-129; HB 16-110. The "best interest statute" recognizes that there is no perfect formula for parenting time. Rather, each child and the circumstances he or she presents are to be the focus of an individualized parenting plan that will be in that child's best interests.
The law specifies that allocation of parental responsibilities requires giving paramount consideration to the child's safety and physical, mental, and emotional conditions and needs. The child's best interests control. C.R.S. § 14-10-124(1.5). The statute recognizes that co-parenting is not appropriate in all circumstances. Id. If the court finds after a hearing that parenting time by a party would endanger the child's physical health or significantly impair the child's emotional development, the court can decline to award that parent parenting time or can place conditions on the time. C.R.S. § 14-10-124(1.5)(a). Otherwise, initial parenting time determinations are based on the best interests of the child.
§ 4.5.1—Best Interests Standard
As noted previously, each parent is entitled to reasonable parenting time unless the child's physical health would be endangered or the emotional development of the child would be significantly impaired. Id. Even a parent who is not fit to be the primary parent or to share decision-making responsibility is entitled to reasonable parenting time, as long as endangerment does not exist. In re Marriage of McGee, 613 P.2d 348, 350 (Colo. App. 1980); In re Marriage of Sepmeier, 782 P.2d 876 (Colo. App. 1989).
Example: The court found some instability in the mother but did not find that the mother's condition endangered the child. As a result, the trial court erred in restricting the mother's parenting time. In re Marriage of Jarman, 752 P.2d 1068, 1069 (Colo. App. 1988).
However, any order concerning parenting time must be made to serve the best interests of the child. In re Marriage of Brown, 626 P.2d 755, 757 (Colo. App. 1981).
§ 4.5.2—Statutory Factors
In determining an appropriate parenting time schedule or in reviewing a schedule established by agreement of the parties, the court, under C.R.S. § 14-10-124(1.5)(a), must consider the following factors.
Wishes of the Child's Parents
The most obvious factor for the court to consider is the wishes of the parents. The court will consider not only what the parents want, but why they want it. The court will be sensitive to reasons that reflect the relationship between the parents rather than a concern for the needs and best interests of the child. In those cases, the wishes of one or both parents may be given less weight than the other criteria in the determination of parenting time.
Example: The mother wants minimal parenting time for the father because she is angry with him for having an affair and wants him to be punished.
Even a wish or request for significant parenting time by an involved parent, benign on its face, may need to be considered carefully for a hidden intent.
Example: The father wants frequent contact with the child because he honestly wants to be involved in the child's daily life, but also because he wants to maintain contact with and continuing control over the mother.
Evidence that may be presented to the court to show the wishes and intentions of a parent or party includes the following: (1) testimony of the parent; (2) non-hearsay statements made by the parent to third parties regarding his or her wishes for parenting time; and (3) examples of past actions of the parent that show not only a wish to be involved but actual involvement.
Practice Pointer
If the client's position is not developmentally appropriate, the stated wish may backfire and give more evidence against that parent's requested parenting time.
Wishes of the Child
The child's wishes are important as well and will be considered by the court. However, the weight to be given to the child's wishes depends, in part, upon the child's maturity. C.R.S. § 14-10-124(1.5)(a)(II). While the wishes of the child must be considered by the court in a case, the child does not have a right to have those wishes presented to the court by independent counsel. In re Marriage of Hartley, 886 P.2d 665, 672 (Colo. 1994).
Age, alone, is not the determining factor. The statute requires that the child's wishes be considered, if the child is "sufficiently mature to express reasoned and independent preference as to the parenting schedule." As such, a five-year-old who is scared from witnessing a parent's substance abuse might be found sufficiently mature in expressing his or her wishes. Similarly, a 16-year-old expressing a desire to be with the parent who is not home much, has few rules, and low expectations, may not be found to be sufficiently mature.
There are several different ways that a child's wishes can be communicated to the court. Although a child's statements may be hearsay, there are exceptions that may apply. See CRE 803. The court also may learn the wishes of a child through the position of a legal representative, or a report of a child and family investigator (CFI, formerly called special advocate) or parental responsibilities evaluator. To learn the child's wishes firsthand, the court may interview the child. C.R.S. § 14-10-126(1).
The wishes of the child, if expressed, must be included in the reports of CFIs. C.R.S. § 14-10-116(2). Because C.R.S. § 14-10-124 requires consideration of the child's wishes, a parental responsibilities evaluator usually sets forth the wishes of the child in his or her report as well, even though the statute authorizing such an evaluation does not specifically require those wishes to be included in the evaluator's report, differing from the requirements of a CFI. C.R.S. § 14-10-127. Presumably, these wishes are admitted not to show the truth of the matter asserted, but to show the basis for the recommendations in the report. Practically, however, some courts may accept the statements as evidence of the child's wishes. As noted, the weight given to this information will vary from case to case.
Practice Pointer
Before appearing in court on a parenting time matter, find out how the court is likely to rule on statements of the child, both with respect to the child's wishes and with respect to other matters of significance.
Practice Pointer
Determination of a child's wishes can be difficult, and extreme care must be taken to avoid putting the child in a position where the child may feel he or she must choose between parents. In particular, it is inappropriate to have direct contact with a child to learn his or her wishes, or to have a parent ask the child his or her wishes, regardless of the child's age.
Relationship Between the Child, Parents, Siblings, and Others
Another factor for consideration by the court is the relationship between the child and those persons close to the child, including family members and other people with a significant connection to the parties. The relationship between the child and certain others bears a close relationship to the past pattern of involvement between the parents and child, a factor discussed below. There are two primary distinctions between these two factors. First, the relationship factor refers to the current situation and status between the child and others. The past pattern of involvement refers to the past status and relationship. Second, the relationship factor considers all significant people in the child's life. Consideration of past patterns of involvement is focused on the parties and the child.
In determining the relationship between the child and others, the court may consider evidence of the following, among other things:
• With whom the child spends time;
• The activities shared by the child and the parents, siblings, and others;
• Whether the child fights or argues with anyone;
• To whom the child looks for comfort and care when afraid or ill;
• With whom the child shares information;
• Whether extended family is closely involved in the child's life; and
• Whether there are half- or step-siblings of the child in one or both households.
The court will consider the relationships between the children, and their ages and genders, particularly closely if a parent is requesting an order providing a different parenting time schedule for each, such as an order for split physical care.
Example: Because the teenage son is the idol and role model for his younger brother, who has learning disabilities, the court may be reluctant to split physical care of the boys. However, the court may consider that the mother has been the younger child's primary caretaker and that the mother and the older son have substantial problems in getting along, including the teenager's threat to run away if he has to live with the mother. These facts might convince the court to consider different parenting time schedules as a viable option, provided the relationship between the boys could be preserved.
Additional significant relationships for the court to consider are the relationships between the child and potential stepparents, partners, or roommates of each parent.
Example: The father's roommate dislikes children and is insulting and mean to the child. The court may determine that the child's primary residence should be with the mother and that the father's choice of roommates indicates an inability or unwillingness on the father's part to put the child's best interests first, supporting an order allocating decision-making to the mother as well.
Adjustment of the Child to Home, School, and Community
For a child of preschool age, this adjustment will primarily concern the child's home and daycare, if any. As the child gets older, involvement in school and the community will...
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