Chapter 4 - § 4.4 • ALLOCATION OF DECISION-MAKING RESPONSIBILITIES

• Jurisdiction: Colorado

§ 4.4 • ALLOCATION OF DECISION-MAKING RESPONSIBILITIES

§ 4.4.1—Best Interests Standard

Under current Colorado law, the court shall allocate the decision-making responsibilities between the parties based upon the best interests of the child. C.R.S. §§ 14-10-124(1.5)(a) and (b); see also In the Interest of L.B., 254 P.3d 1203 (Colo. App. 2011), where best interests standard is not required in dependency and neglect action governed by the Juvenile Code. The court may allocate the decision-making responsibility with respect to each issue affecting the child jointly between both parties, individually to one or the other party, or any combination thereof. C.R.S. § 14-10-124(1.5)(b); In re Marriage of McSoud, 131 P.3d 1208, 1213-14 (Colo. App. 2006). For example, a court can allocate responsibility for major education decisions to one party but allocate responsibility for major medical decisions to the other party. A court can also allocate sole decision-making responsibility to one party in the event parties are unable to agree after exchanging input. In re Marriage of Rodrick, 176 P.3d 806, 814 (Colo. App. 2007). Except as otherwise agreed to by the parties, the person with responsibility for decision-making may determine the child's upbringing, including his or her education, health care, and religious training, unless the child's physical health would be endangered or the child's emotional development would be significantly impaired.

Religious decision-making is different, given constitutional rights and freedom. Before a court can go beyond allocating sole decision-making on a child's religious upbringing to restrict either parent's right to expose the child to that parent's religion or to practice that parent's religion, the court must find a compelling state interest in the form of avoiding substantial emotional or physical harm to the child. McSoud, 131 P.3d at 1213-14. Additionally, before a parent can be restrained from presenting objections to a child's treatment or education to a child's school or to the child-care providers, a court must consider whether restrictions on a parent's right to communicate with third parties concerning the child are warranted. In re Marriage of Newell, 192 P.3d 529, 535 (Colo. App. 2008). If restrictions are deemed necessary, the court must make additional findings regarding the type and degree of harm that the child has suffered or may suffer because of the speech that is to be restricted and identify specifically the evidence relied upon so that the reviewing court may determine whether the harm that justifies the restriction has been demonstrated in detail. Id. Restrictions on a parent's speech must be the least restrictive alternative that would achieve the legitimate goal of avoiding actual or threatened substantial harm to the child. Id. Again, because of constitutional implications, more is required.

There is no Colorado statute that defines "major decisions" concerning the health, education, and general welfare of the child. Similarly, there is no case law that defines in detail what is meant generally by "major decisions," although there is some case law concerning specific types of decisions. In addition, in many cases, the court order allocating decision-making authority will not define what will be considered a major decision with much detail. These omissions may lead to continuing conflict between the parties, even in cases in which one party was granted sole decision-making authority. In fact, a large number of...