THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
Posted in Child Custody on March 11, 2020
Child custody is one of the most complex aspects of divorce. It is a highly emotional matter deciding who will be physically and legally responsible for your child. The courts of Colorado do not take custody decisions lightly. They analyze many factors and will hear from both sides of the case before determining what custody arrangement is best for the child. Learning what to expect from a custody battle in Colorado can help you prepare for what is to come.
What Are Parental Responsibilities?
Parental responsibility is the term Colorado now uses for child custody. Colorado has two types of parental responsibility: physical (parenting time) and legal (parenting responsibilities). Parenting time describes the physical care of the child at a parent’s home. Legal parental responsibility is the right to make important decisions as to the child’s religion, education and health care. Most custody cases will involve both parents sharing both types of responsibilities. It is possible, though rare, for the courts to assign one parent only one type of custody and not the other.
Factors Involved in Custody Decisions
As is the case in all states, Colorado bases custody decisions during a divorce case on one main priority: the child’s best interest. During your fight for custody of your child after a divorce, you or your child custody lawyer will have the opportunity to present arguments and evidence as to why your desired custody arrangement is best for your child. The courts will assess many factors to understand what will benefit the child the most.
- The fitness of each parent. The courts will analyze each parent’s background and history, including any history of drug or alcohol abuse, criminal convictions, domestic violence charges (even if not convicted), and mental health disorders.
- The relationships between the child and each parent. A judge will assess the child’s relationship with each parent, as well as with his or her siblings and grandparents, to determine what would be in the child’s best interest.
- The child’s establishment in a location. A judge will look at how established the child is in his or her community, including school, church and after-school activities, as well as how well the child might adapt to a new environment.
- The child’s wishes. If the child is old and mature enough to have an independent opinion (unbiased by a parent’s), a judge may consider the child’s own wishes in terms of where he or she wants to live.
You can improve your odds of attaining the child custody arrangement you desire by hiring a lawyer. A divorce lawyer will know what to say and do to position your case in its best light. A lawyer knows what a judge is looking for when assessing each parent in terms of fitness. You can trust your attorney to do and say what is right for your case while you focus on building a better future for you and your family after divorce.
Common Custody Arrangements
While the courts recognize co-parenting is not appropriate in all situations, they also believe that, in most circumstances, frequent and continuing contact between the child and each parent is in the best interest of all parties (Colorado Revised Statutes 14-10-124). An exception is if the case involves physical, sexual or emotional abuse by one parent, in which case the courts may decide the child is better off 100% in the care of the other parent.
Joint custody is more common than sole custody in Colorado. Joint custody is a split arrangement that gives both parents physical custody some of the time. Some joint custody arrangements are 50/50, but most use another type of division for practical reasons. One parent may have the child every weekend, for example. Sole custody gives one parent 100% of physical custody (and often legal responsibility). The other parent may or may not have visitation rights in a sole custody agreement.
Cheating is the driving factor behind many divorce cases. Cheating could be the reason one or both parties come to the courts with a divorce petition. Whether cheating will play a role in divorce proceedings, however, depends on the state. Most states permit petitioners to bring fault-based divorce claims on the grounds of adultery. In these states, cheating could influence a judge’s decisions, such as child custody or alimony. In Colorado, however, no-fault laws mean cheating generally will not affect a divorce.
Colorado Is a No-Fault Divorce State
Colorado is one of 17 true no-fault divorce states in the U.S. True no-fault states do not allow residents to file for fault-based divorces. In Colorado, therefore, a petition cannot list adultery as a reason for the dissolution of marriage. The only acceptable grounds for divorce in Colorado is an irretrievably broken marriage. Even if cheating is what broke your marriage, the state courts do not need to know the specifics. The courts only ask that either both parties agree the marriage is irretrievably broken or the respondent does not deny it.
Cheating will not impact any of a judge’s decisions during most divorce cases in Colorado. Since a petitioner cannot assert adultery as a reason for the dissolution, the judge will not consider it during child custody, property division or alimony decisions. In a fault-based state, on the other hand, a judge may use cheating as a determining factor in these important decisions. In general, the spouse that did not cheat could receive a greater portion of marital property and alimony in a fault-based divorce state.
Exceptions to the Rule
Although cheating will not play a factor in most no-fault divorce cases in Colorado, some exceptions to the rule exist. In extreme situations, adultery could impact a judge’s decisions. A judge in Colorado will not look at a spouse’s moral or ethical fitness, but he or she could assess how adultery might impact material aspects of the case. If you are curious as to whether cheating might affect your divorce, consult a lawyer.
- Marital waste. Colorado is an equitable distribution state, meaning a judge will divide marital property based on what is fair and equal for the couple. Many factors could influence a judge’s decision, including marital waste. This is a legal issue in which one spouse spends an excessive amount of money; for example, if a spouse spends an exorbitant amount on travel or hotel rooms while having an affair. In cases involving marital waste, a judge could award greater marital assets to the other spouse.
- A child’s best interests. In some adultery situations, a judge may see one parent’s romantic relationship as something that could potentially go against the child’s best interests. If the parent’s new spouse has a history of domestic violence or substance abuse, for example, the judge may not feel comfortable awarding that parent primary custody of the child. The child’s best interests will be the main standard in making this decision, however, not the fact that one parent cheated on the other.
- A prenuptial agreement. Some couples in Colorado sign prenuptial agreements before getting married. A prenuptial agreement could have an infidelity clause, in which case cheating would affect the divorce. An infidelity clause could state that if one spouse cheats on the other, the cheating spouse must face the consequences listed in the prenup, such as getting to keep fewer marital assets.
In most cases, it will not matter if your spouse cheated on you in Colorado. If your relationship fulfills one of the exceptions, however, you may need a lawyer’s assistance in navigating how adultery might impact your divorce. A lawyer could help you use your spouse’s adultery to your advantage, if possible, or defend you against such actions if you are the one guilty of infidelity. Regardless of your situation, a divorce attorney could help you work through a complicated divorce case in Colorado.
Posted in Child Custody on October 14, 2019
During a divorce case, it is normal to feel anxious, depressed or overwhelmed. For many people, the stressors that come with divorce are enough to lead to a prescription for antidepressants. If you are on antidepressants, however, your spouse could try to use this against you during a custody battle. While this may seem like a lose-lose situation, you may be able to avoid negative repercussions if you know what to expect during your custody case – and how to strengthen your position as a parent.
How Does Colorado Decide Child Custody?
Before the courts intervene in child custody in any divorce case, they will give the couple the opportunity to create their own parenting plan. If the parents can agree on parenting time and responsibilities, a judge will most likely sign off on the custody plan the parents create, as long as the decision is in the child’s best interest. If, however, parents go to court to determine custody, a judge will decide the parenting plan for them based on several factors.
- Relationship between the child and each parent
- Child’s establishment in the community
- History of abuse or domestic violence
- Parental conduct, including substance abuse
- Stability of each household and parent
- Child’s wishes, if old enough to decide
Overall, a judge will make a custody decision based on one main concern: the child’s wellbeing. The judge will rule according to what he or she believes is best for the child’s health, safety, welfare and happiness after hearing both sides of the case. The courts generally try to keep both parents in a child’s life unless there is sufficient reason to keep a parent away. Co-parenting skills could help you achieve full or joint custody during a divorce case in Colorado.
Can Antidepressants Work Against You?
It is an unfortunate reality that seeking help for your mental health during a divorce could negatively impact your custody case. That could be the situation, however, if your spouse decides to use your depression or the fact that you are on medications against you. Your ex-spouse may bring these issues to a judge’s attention during his or her arguments. A judge may see this as a sign of potential instability and rule in your ex-spouse’s favor.
However, taking antidepressants could also be proof that you are responsible enough as a parent to get your depression under control. If you hire an attorney to advocate your side of the custody case, your lawyer could help you shed a positive light on your situation. Your child custody lawyer can explain to a judge that you are suffering from situational depression because of the divorce and that you do not have a history of needing antidepressants, or that you are stable and consistent even while on antidepressants.
If a judge believes your depression or taking antidepressants could affect your mental state, he or she will want to learn more. Your lawyer can take this opportunity to illustrate your character and explain to the judge that you are a responsible, even-tempered parent who is taking medications to strengthen your mental health. Your lawyer can show the judge you are taking a medication prescribed by a doctor, according to the doctor’s directions, and that you are not abusing the drugs. Your lawyer could also establish that your depression does not interfere with your ability to take care of your child.
Do not let your ex-spouse intimidate or bully you into trying to handle your mental health without professional help. See a doctor and do not be afraid to take antidepressants, if prescribed. Do your best to restore your mental health. Then, hire a lawyer from the Law Office of Stephen Vertucci to represent your side of the case during a custody trial in Colorado. If your lawyer can prove you are handling your situational or clinical depression in a healthy way, it should not interfere with your claim to child custody.
Dealing with a divorce can be difficult for any family. As a stay-at-home mom, however, you may worry more than most about what your life might look like post-divorce. You may have forfeited an education or career to care for children, relying on your spouse for financial support. Now, you may lose this support, on top of dealing with expensive divorce fees and court costs. Luckily, Colorado law looks out for stay-at-home moms and other divorcees in financial binds.
The Right to Hire an Attorney
If you have a complicated divorce, hire an attorney to help you work through your case. As a stay-at-home mom, your divorce case will most likely involve complicated matters that deserve legal attention, such as spousal support and child custody. A Fort Collins family lawyer can protect your rights from the beginning, taking over communications with your ex-spouse and his or her attorney. If you cannot afford to hire a lawyer, ask about including your legal fees as part of a divorce settlement. Many lawyers will work with you to arrange a payment plan that works for your family.
The Right to Fight for Primary Custody
The courts in Colorado will not automatically award you child custody, even as the stay-at-home parent. However, this fact will most likely work in your favor during custody negotiations. First, you and your spouse will have the opportunity to work together to create your own parenting plan. This plan will include custody, parenting time and parental responsibilities. If you can, work with your spouse during mediation to compromise on child custody matters. That way, you can both avoid surprises that may occur if your case goes to court.
If you and your spouse cannot work out a custody arrangement, use an attorney to help you fight for primary custody. An attorney can help you prove to a judge that you are the right choice with evidence such as your close relationship with the children, your role as the primary caregiver, their emotional bond to you and other factors. Your children will not have a say in custody unless they are old enough to give their opinion. In that case, a judge may consider what your children have to say. Ultimately, the judge will rule on a custody matter based on the best interests of your children.
The Right to Seek Child Support
As a stay-at-home mom, you will most likely be eligible for a child support order if the courts grant you primary custody. Colorado’s child support laws offer money in monthly installments or lump sums to help the primary parent pay for the care and support of children. Your spouse may owe you child support based on both parties’ incomes, education, jobs and parental rights. The courts may award child support if it is reasonably necessary to give children the same quality of life they had before the divorce. A child support order will typically last until the child turns 18 unless the child is still in high school or has a disability.
The Right to Request Spousal Support
Spousal support, or spousal maintenance, is a monetary award the courts may grant one spouse in circumstances of financial need. Spousal support is not a guarantee, even as a stay-at-home mom with little to no income. A judge in Colorado will only award spousal support if you exhibit financial need and if your ex-spouse has the means to pay the award. The amount and duration of the award, if any, will depend on your situation.
Colorado law uses the length of the marriage to determine how long spousal support will last. The law has a long list outlining how many months a spouse may receive support. For a marriage lasting 5 years, for example, the support order will last 21 months. The longer your marriage, the longer you could receive spousal support. You should use the months in which you receive spousal maintenance to get an education or job training that will help you find a position to support yourself and your children on your own. An experienced and local lawyer could maximize your odds of gaining spousal support during a divorce case.
A history of crime could impact your child custody case in Colorado. All child custody matters boil down to one main consideration: what is in the best interest of the child. If a criminal record demonstrates to a judge that you may put your children at risk in any way, it could impact his or her decision on custody matters. With criminal charges pending against you, a judge may rule in the other spouse’s favor. Should the criminal courts dismiss the charges against you, however, you may be able to file a request to modify the custody order.
Your Criminal Record Will Be Part of a Divorce Trial
It is impossible to conceal your criminal past from a judge during a child custody trial. Your record is public and an important piece of your past in the eyes of the family courts. The best you can do is to seal your criminal record, which may be an option if the courts convicted you of a petty offense, minor violation or crime involving certain drugs. A sealed or expunged record could help your custody case by showing a judge you did not commit a major offense or completed probation.
If the criminal charges against you are still pending, a judge may wait to make a custody decision until the resolution of your criminal case. It is possible that a criminal courtroom will drop the charges against you or find you not guilty. In these cases, you may not have to worry as much about a criminal history impacting your child custody case. If, however, the criminal courts do not rule in your favor, a judge will consider your propensity toward crime when determining custody. If a custody case must proceed while criminal charges are still pending, it could hurt your odds of a positive outcome.
How a Judge Decides Custody in Colorado
The Colorado courts refer to child custody as parental responsibilities. Parental responsibilities include physical custody of the children and the right to make important life decisions for them, such as education and health care. It can also refer to visitation rights for a noncustodial parent and/or grandparents. Parental responsibility court decisions center on the standard of a child’s best interest.
- Each parent’s relationship with the child
- Children’s connections to the community
- Parents’ wishes
- Children’s wishes (in some cases, if children are old enough)
- Both parents’ abilities to care for children
A judge will rule according to what would be best for the children. Each parent’s character and habits are relevant in this consideration. A judge will hear testimony from character witnesses and review things such as each parent’s criminal record, history of domestic violence and drug or alcohol dependencies. Pending criminal charges may or may not impact your custody case depending on the identity of the victim, nature of the offense and whether it was your first encounter with the law.
Modifying Your Custody Order in Colorado
A pending charge is not a criminal conviction. If a judge has already decided against you in a custody matter, but the criminal justice system in Fort Collins drops the charges against you, you may be able to fight for a better outcome. A judge may agree to modify your custody order if doing so suits the best interests of the children. Receiving an order modification will take proving that your situation has significantly changed since the date of the first order; for example, dropped charges, an expunged record or the completion of your sentence.
A judge will still take your criminal history into account when deciding child custody. If you or your lawyer can convince that different custody or visitation rights are in the child’s best interest, however, the judge may agree to modify the original order. Hiring an attorney and staying out of legal trouble can optimize your odds of a positive parental responsibilities agreement, as can proving you can provide a safe and stable environment for your children.
Posted in Child Custody on April 3, 2019
When a married couple with children decides to divorce, they must draw up a custody agreement that preserves the best interests of their children. It is in the best interests of both spouses to come to mutually agreeable terms and focus on what is best for their children. When either divorcing spouse attempts to “weaponize” the children against the other spouse or otherwise tries to interfere with the children’s relationship to the other spouse, this is ultimately destructive for everyone involved. Having a family law attorney may be able to help mediate this process to make the transition smooth for both parties involved.
Parents may have strong negative feelings for one another following a divorce, but they should do their best to keep these feelings from affecting their relationships with their children. In almost every case, children benefit most from having consistent contact with both parents. Developing a custody agreement that works for the best interests of the children may not be equally appealing to both parents, but the system strives for fairness and practicality, and the court ultimately has the responsibility to rule in favor of the best interests of the children in a divorce case.
- 50/50 Custody Arraignment
- 80/20 Custody Arraignment
- 70/30 Custody Arraignment
- 60/40 Custody Arraignment
Determining Child Custody in Colorado
The court refers to many factors in deciding custody in a divorce case. Generally, the court wants to minimize disruption to the children’s typical daily schedule. When a couple decides to file for divorce, the court will assess each parent’s income, work schedule, criminal background, and the reasons for the divorce in determining an appropriate custody arrangement. For example, if one parent has a substance abuse problem or a criminal record, the court will likely find these issues as grounds to deny primary custody, or the court may require a specific set of visitation terms for the noncustodial parent with a spotty background.
Ultimately, the court uses various factors to determine the fitness of both parents. The parent deemed more fit than the other for any reason will likely win majority custody of the children, also called primary physical custody. The parent with physical custody generally has the power to make important decisions on behalf of the children and is primarily responsible for ensuring a safe and nurturing upbringing. The other parent (the “noncustodial” parent) must have permission from the custodial parent with primary physical custody before making any major decisions for the child, such as enrollment in school, medical decisions, or other decisions concerning major life events.
50/50 Joint Custody
If the court deems both parents fit, and both parents have work schedules that allow them to spend an equal amount of time with their children, the court may approve a 50/50 joint custody agreement. In such an agreement, both parents share physical custody of their children and must come to an agreement for any major decisions on behalf of their children. A 50/50 joint custody agreement can take many forms, but in most cases the children will spend one week with one parent and then the next week with the other parent. The court may approve a different joint custody arrangement on a case-by-case basis, but as long as the parents qualify for physical custody and can spend an equal amount of time with their children, the custody agreement must be 50/50.
A 50/50 agreement could involve the children switching between parents every week at the same time. For example, the children may switch parents every Friday after school, alternating each week. The court may also approve a less consistently disruptive schedule and approve a switch every other week, effectively allowing each parent two weeks at a time with their kids.
Other formats are more complex but ensure a more even distribution of time with each parent, such as a 3-4-4-3 schedule with three days with one parent, four days with the second parent, four days with the first parent, and then three days with the second parent. A 2-2-5-5 schedule would entail two days with each parent followed by five days with each parent.
Other Possible Visitation Schedules
When one parent has primary physical custody and spends more time with the children than the other parent, the divorcing couple will need to develop a visitation agreement to ensure the noncustodial parent has time to spend with his or her children. These visitation schedules usually follow an 80-20, 70-30, or 60-40 framework.
When one parent has custody 80% of the time and the noncustodial parent only has custody 20% of the time, the children may visit the noncustodial parent every other weekend. Another possible schedule could be the children spend the first, third, and fifth weekends each month with the noncustodial parent. An 80-20 arrangement could also include visitation every third weekend.
In a 70-30 custody arrangement, the custodial parent has custody every week and then the children spend each weekend with the noncustodial parent. Another option could be a simple 5-2 schedule in which the children live with one parent for five days per week and then spend the other two days with the other parent. The parents may also decide on a week-based arrangement, with the children living with one parent for two weeks and then the other parent for one week.
Many 60-40 custody arrangements function on an extended weekend framework. For example, the children would spend the week with one parent and then spend an extended weekend with the other. While some visitation schedules may end on Sunday afternoon, a 60-40 extended weekend arrangement would entail the children leaving school on Friday to go to the other parent and then returning to school Monday morning, leaving to go to the other parent’s house that afternoon. A 60-40 schedule could also entail the children spending four days with one parent and then three days with the other parent. This option often works best for parents who arrive at a 50/50 custody agreement but their schedule involves too many switches throughout the week.
If both parents remain living in the same area, working out an equitable custody agreement is much easier. Since the children can remain in the area they already live, a custody agreement may simply mean they take a different bus home every Friday and the parents can handle important decisions as they arrive with equal authority. However, if one parent has shown the court any reason why he or she cannot provide the same level of parental care and support as the other, the court will likely rule in favor of awarding primary physical custody to the other parent.
Making Your Visitation Schedule Work
It is vital for divorcing parents to remember that the court has a duty to rule in the best interests of their children, regardless of the fitness and availability of the parents. Both parents may have equal ability to handle a 50/50 custody split, but the court may deem that repeated switching is detrimental to the children’s lives and instead opt for a 60-40 or 70-30 split. It is also possible for the court to rule in favor of reasonable visitation, or allowing parents who share joint custody to work out a reasonable custody agreement between them. However, factors like one parent moving out of the area could influence the court to rule in favor of the children remaining with the parent who will stay in the family home to preserve day-to-day stability.
Parents’ best option for making the custody and visitation system work more smoothly is communication with their exes. Although a divorced couple may have many personal issues with each other, they should do their best to avoid allowing these issues to seep into discussions about their children. Remaining cooperative and patient when deciding custody is the best option; there is almost always an opportunity to adjust an existing custody agreement later.
Posted in Child Custody on March 2, 2019
Child custody is often the most critical part of a divorce case for the parents involved. No parent wants to lose custody of his or her child. However, the Colorado courts will make a decision based on the child’s best interests. Unfortunately, your spouse may take a custody hearing as an opportunity to raise grounds to prove that you are an unfit parent. One such ground in Colorado is substance abuse. Don’t face this battle alone, speak to a Fort Collins child custody attorney today.
If your ex-spouse is raising alcohol or drug claims against you, the courts must take these allegations seriously. A judge may request evidence of substance abuse, or send investigators to look into the issue further. If the allegations are at all truthful, and the courts deem your substance abuse as a possible danger to children, it could negatively influence your likelihood of securing child custody.
- What are the different types of custody arrangements in Colorado?
- How can you prove a parent is unfit in a child custody case?
- How do Colorado courts decide who gets custody?
- What happens after a substance abuse allegation?
- How can substance abuse hurt your child custody case?
- What if neither parent is fit?
- How can marijuana use impact a child custody case in Colorado?
Types of Custody Arrangements in Colorado
Colorado law now refers to child custody as parental responsibilities. In Colorado, the family courts can assign parental responsibilities according to many different setups. The most common is joint legal custody, or joint parental responsibilities. Joint custody is a shared system, in which both parents divide the amount of time they spend with the child. Both parents will share decision-making responsibilities for major life choices, such as the child’s religion, education, and healthcare.
Joint custody, however, often does not mean a 50/50 split. Splitting parenting time directly in half can be difficult for the child – especially if one parent lives out of state. It is more common for the courts to order a different type of joint custody division, such as 75/25. One parent may have custody during the week, while the other may have the child on the weekends. If parents cannot come up with their own schedule, a judge will make the arrangement for them.
Sole custody is less common, since the courts generally want the child to stay in touch with both parents, whenever possible. Sole custody refers to one parent having 100% of physical and/or legal responsibilities over the child. The other parent may or may not retain visitation rights depending on the situation. The courts typically only grant sole custody if a case involves domestic violence or child abuse.
Grounds for Proving an Unfit Parent in Colorado
A parent who wants full, primary custody of a child in a divorce settlement may try to prove that the other parent is unfit. That way, the courts will have no choice but to award the first parent custody. Different states have different grounds on which the courts will determine a person to be an unfit parent. What could earn you the title of an unfit parent in Colorado?
- Child abuse or neglect
- Mental illness
- Domestic violence
- Drug or alcohol use
If your ex-spouse brings any of these allegations forward during a custody hearing, the judge will most likely ask for evidence supporting the claim. It will then be on your ex-spouse (or his or her attorney) to prove that you do have a history of one of these grounds, and that it could put the life of your child in danger. You could lose child custody if your ex-spouse succeeds in this burden of proof by showing you currently use drugs or alcohol.
How Do the Colorado Courts Determine Custody?
Proving you are an unfit parent is not the only way your ex-spouse may secure primary custody during a divorce case. The Colorado courts examine many different factors when making a custody judgment. The number one factor will always be what is in the child’s best interests, but the full picture will include an analysis of many parts of your life.
- Your income, education, and job training
- Your relationship with your child
- The amount of time you spend with your child
- How well you understand and respond to your child’s needs
- Any social issues that could negatively affect the child
- The attitude the child has toward you
- The child’s wishes, if he or she is mature enough
Overall, a judge’s goal will be to assess the abilities of both parents, as well as their living situations, to determine what custody arrangement will best serve the child’s interests. If you have a history of alcoholism or drug abuse, this could negatively affect how the courts see your ability to provide a safe home for your child. A substance abuse disorder could ultimately take custody away from you.
What Will the Courts Do After a Substance Abuse Allegation?
If your ex-spouse has raised an alcohol or drug allegation during your Colorado custody case, the courts will most likely order you to submit to immediate drug or alcohol testing. The courts have the right to request a urine screen, blood tests, breath screens, hair tests, or nail tests to find out whether you have substances in your system.
The courts may order different panels for specific drug testing, depending on the allegations against you. A five-panel test, for example, can show traces of marijuana, cocaine, opiates, PCP, and amphetamines, while a 17-panel test can test for 17 different substances. Generally, you will have to pay for your substance-screening test on your own. A positive test result that demonstrates chronic alcohol or drug use could result in a negative child custody outcome.
How Substance Use Can Hurt Child Custody Cases
From a judge’s perspective, intoxicating substances could impact your ability to be a safe, responsible, and present parent. Most courts will not rule in favor of a parent with proven substance use issues during a custody hearing, for fear of the drugs or alcohol negatively impacting the child. The courts may fear that drugs or alcohol could lead to domestic violence, child neglect, or other serious issues.
Suffering a substance use disorder will most likely result in your ex-spouse getting primary or full custody of your child – at least temporarily. The courts may give you the opportunity to join substance education classes and prove your sobriety at a later date. You may have the option to file a Motion for Child Custody Modification with your local courts once you have gotten the substances out of your system and are on the path to recovery. If you can prove you have changed, the courts may award at least partial custody to you.
Most courts in Colorado will require you to prove your sobriety through steps such as submitting to random alcohol and drug testing, or to regular substance monitoring. You may need to complete a recovery program, and bring evidence to your future custody hearings that you have not imbibed drugs or alcohol. Evidence could include chemical tests and the testimony of friends, relatives, or program sponsors.
If your ex-spouse is raising drug or alcohol allegations after the courts have already made a custody decision, the legal process will look different. The spouse may have made these allegations during a hearing to modify the existing custody order. In these cases, the courts may agree to modify the order to either remove custody from you, or to arrange some type of supervised visitation until you can prove you are clean and sober.
What If Neither Parent Is Fit?
If the courts determine that neither you nor your ex-spouse are fit to have custody of children, either due to substance abuse or other issues, your child may end up in the custody of the state. The Department of Child Protective Services may provide a temporary home for your child while you and/or your ex-spouse stabilize your family situation. Your child may go to a trusted friend or family member, or with a foster family or group home until you can prove you are in a position to properly care for your child.
You may regain custody and parental responsibilities over your child after the state has intervened if you can prove that you have changed. Again, the courts may demand to see clean chemical tests or proof that you have completed a substance abuse education program. Follow the court’s instructions on how to regain custody, and you may earn back some or all of your parenting rights.
The Impact of Recreational Marijuana Use on Child Custody in Colorado
As one of the laxest states when it comes to cannabis legalization, Colorado has experienced some of the first significant issues regarding recreational marijuana use and child custody. It is legal to possess and to use certain amounts of marijuana in Colorado recreationally if you are an adult over the age of 21. You do not need a medical card to purchase or consume cannabis within the state. The consumption of cannabis recreationally or medicinally, however, is still against federal law – and it could interfere with child custody during a divorce case.
It does not matter whether you consumed marijuana legally according to the state’s laws. If your ex-spouse brings up a drug allegation for using marijuana, you could lose custody of your child. Most judges will consider the impact your drug use may have on your child, whether lawful or not. The same would be true if you took prescription medications, such as painkillers, that could potentially interfere with your ability to safely care for children. Your use of recreational marijuana will not automatically bar you from custody. Instead, the courts will assess your individual situation.
According to federal regulations, marijuana is a Schedule 1 drug that can pose a danger to children if parents use it irresponsibly. It is likely, therefore, that a judge will view a parent’s use of marijuana negatively when determining child custody – especially if the parent uses it recreationally and not for medicinal purposes. Note, however, that in 2010, a Colorado appeals court ruled that the courts could not deny child visitation rights based on marijuana use, if the parent does not use the substance around his or her child.
How to Improve Your Custody Case
Nationally, parental marijuana use has had mixed impacts on child custody cases. In some cases, it has swayed a judge’s decision and affected custody, while in others the courts have ruled that marijuana use is not negatively affecting the child. The decision in your case would depend on your unique situation and use habits.
While the courts will weigh many factors in its decision, a custody choice will ultimately come down to what is best for the child. To maximize your odds of a favorable outcome, hire an attorney. An experienced attorney may be able to help establish you as a stable parent who is willing to put his or her child’s needs first, even in the face of alcohol or drug use allegations.
The most common form of child abduction is parental kidnapping. Parental kidnapping occurs when a non-custodial parent takes children without the custodial parent’s knowledge or consent. Colorado laws define taking a child as kidnapping, even if the abductor is a parent, if that parent does not have custody or parenting time privileges. If a non-custodial parent unlawfully takes a child, the other parent has available options for the child’s safe return.
Examples of Parental Kidnapping in Colorado
A non-custodial parent in a situation with a court-ordered custody agreement can never be too careful with what he or she does with children. Surprising children at school, for example, might not be a good idea if a parenting time order expressly forbids unsupervised parental visits. Picking children up from school, church, or elsewhere and taking them somewhere – even for ice cream down the road – without the legal right or the other parent’s consent, is parental kidnapping.
One of the most common examples of family abduction is removing a child from the state in violation of a custody order. Some families may live in one state, but have a child custody order from another state. This can present issues, as state officials can only enforce orders from within their state. If you moved to Colorado with a custody agreement from a different state, get a Colorado court order as soon as possible. That way, law enforcement will have the right to recover children and return them to the custodial parent. Otherwise, your ex-spouse may be able to escape liability because of a loophole in the system.
In Colorado, a parent with primary custody of minor children has the right to move out of state with them, without the other parent’s consent. This does not constitute parental kidnapping. However, the non-custodial parent has the right to petition the court to prohibit the removal of children from the state. The courts will hold a hearing to decide whether it should prevent the move or permit it to happen. Blocking the move may occur if the courts believe it is in the children’s best interests.
Colorado is unique in that most states do the opposite: the custodial parent must petition the courts to move out of the state. Note that removing children from the state or taking them elsewhere is not parental kidnapping if the courts have not issued a custody order. If the parents never went to court and received an official custody agreement, it is not kidnapping for one parent to take the children – even without the other parent’s consent or knowledge. Both parents will retain equal responsibilities and rights, until the court says differently with an official custody order.
What to Do About Parental Kidnapping
Finding out your ex-spouse breached a custody order and took physical control of your children without consent can be frightening. If you have already filed for allocation of parental rights and won, then your ex-spouse is in violation of the custody agreement and may be guilty of parental kidnapping. Your first step should be to call the police, especially if you believe your children to be in danger. The other parent could be guilty of 2nd-degree kidnapping, or wrongfully retaining a child under 18 years old. This is a class 5 felony.
Colorado law enforcement will have the power to take steps to retrieve your child as long as you have a state-issued court order granting you custody of the children. If your ex-spouse receives a conviction for parental kidnapping, he or she could face up to three years in prison and $100,000 in fines. The police may ask if you want to press charges, and the city may decide to prosecute regardless of what you say. Once you call the police, the matter is generally out of your hands.
Posted in Child Custody on February 13, 2019
Child custody is one of the most complex matters in a Colorado divorce case. Determining which parent will receive joint, shared, or full custody of children will become a decision of the court, if the parents cannot agree to custody terms on their own. The number one factor a judge will consider when making custody determinations is the best interests of the child. Colorado law makes it mandatory for a judge to consider this first when deciding parental responsibilities.
If you are going through a divorce in Fort Collins and children are involved, do not wait until this important decision is entirely in a judge’s hands. Call the Fort Collins child custody lawyers at the Law Office of Stephen Vertucci at (970) 900-1800 today and arrange for a consultation.
What Factors Affect a Custody Decision?
Although a child’s best interests come first, many different things can influence a judge’s decision during a child custody case. Both parents will have the opportunity to state their cases for custody. The judge will listen to both sides, speak to people close to the child, and may discuss the matter with the child depending on the situation. The judge will then use a variety of factors to make the final determination.
- Child’s age
- Interaction between the child and parents and siblings
- Home, school, and community adjustments
- Parents’ mental and physical health
- Willingness of parents to share the child
A judge may also take into account the child’s own wishes. However, that is not to say your child will have the ability to decide whom to live with during a divorce. A judge may ask a child who is old enough (typically 12 to 14) which parent he or she prefers to live with the majority of the time. A judge will typically do this outside of the courtroom, to keep the child out of the case as much as possible. A judge will use a third-party evaluator to ascertain the child’s wishes. Then, the judge may consider this during the decision.
The Power of a Child’s Wishes
Each child custody case is unique. In Colorado, as in most states, no hard and fast rule exists with an age at which children are old enough to make custody decision on their own. Instead, judges will take each case as they come. Most courts agree that age 14 is old enough to give kids some say in custody battles. By ages 16 and 17, children may have more influence over which parent they live with. Some courts will place significant weight with the opinions of children this old. Children younger than 14, however, will have a harder time getting a judge to take their wishes into account.
A judge will never base a custody decision solely on the wishes of the child, regardless of age. However, a judge may consider an older child’s wishes in the final determination. A child’s wishes may come true if a judge determines that is what is in the child’s best interests. Otherwise, the child will have to live with the other parent, even if he or she does not want to. A judge will always rule in favor of the best interests of the child, regardless of what the child wants or does not want. Yet a child old enough may be able to sway the judge’s decision.
Can a Child Change a Custody Order?
No, the wishes of a child to go live with the other parent are not enough on its own to change a custody agreement in Colorado. Colorado Revised Statutes Section 14-10-129 states that a child must be in physical or emotional danger for the judge to approve a change in primary residential child custody. Even if a teenage child wants to live with the other parent, he or she lawfully cannot do so without proving physical or significant emotional endangerment. Going to live with the other parent without an official custody agreement modification could put the parent in violation of the order.
More Information / FAQ’s on Child Custody
- Factors Parents Should Consider When Determining Child Custody
- Are Mothers Favored in the Child Custody Process?
- Can You Lose Custody of Your Child if You Miss Too Many Visitations?
- Is Co-Parenting Right for Your Child Custody Case?
- Colorado Child Custody Laws
When a person with a biological child marries another person, the new spouse becomes the child’s stepparent. There are many situations in which a stepparent may wish to raise the child permanently with the child’s biological parent, and adoption is the best way to ensure the child has the legal protection afforded to a biological child. An adoption can also help bring a family closer.
In Colorado, a stepparent may adopt a spouse’s biological child under certain conditions. First, the stepparent must not have any prior felony convictions that involve child abuse, violent crime, or crimes of a sexual nature.
Under Colorado law, a child is eligible for adoption when the other biological parent is deceased, or the court has officially ended the parent-child legal relationship between the child and the other biological parent. If the other parent is still alive, he or she must voluntarily relinquish parental rights or provide written permission for the adoption to the other biological parent.
Benefits of Stepparent Adoption
Stepparent adoption can help a mixed family feel more “whole” in several ways. The adopted child may take the new adoptive parent’s last name and feel like more of a family. Depending on the age of the adopted child, a stepparent adoption can be a great way to overcome the difficulties of a divorce or the death of a parent.
The adopted child will have all of the rights that a biological child would, including inheritance rights and the right to pursue a wrongful death claim if the adoptive parent dies due to the negligence of another party.
The Adoption Process
Once a biological parent obtains the consent of the other biological parent for the adoption to move forward, the adoptive parent will need to undergo a federal and state criminal background check. The adoptive parent must also obtain and complete several forms, including:
- Petition for Adoption
- Verified Statement of Fees Charged
- Consent to Adoption – Custodial Parent
- Consent to Adoption – Child Over Twelve Years of Age
- Notice of Hearing
- Petition to Terminate the Parent-Child Legal Relationship
- Consent to Adoption – Non-Custodial Parent
- Waiver and Acceptance of Service
An experienced family law attorney can help an adoption applicant fill out the necessary paperwork and track down any other documentation that may need to accompany the petition.
After completing and submitting this packet of paperwork, the court will likely send an investigator to conduct a home check. This person’s job is to determine whether the adoption would be in the best interest of the child. The investigator will likely ask the child a few questions about his or her home life, school, and his or her relationship with the parents. The investigator will also interview the parents, relatives, step-siblings, and other parties who may be able to provide insight into the family’s dynamics.
The Adoption Hearing and Beyond
Once the investigator provides the court with his or her findings, the adoption process will proceed to a hearing. During this hearing, the adoption applicant will provide the judge with his or her reasoning why the judge should end the legal parent-child relationship with the other biological parent and approve the adoption. If the other biological parent does not contest the adoption or has voluntarily relinquished his or her parental rights, the judge will likely approve the adoption petition.
After the judge approves the adoption, he or she will issue a Final Decree formalizing the adoption and recognizing the legal parent-child relationship between the adoptive parent and adopted child. The parents may also arrange for a name change and a reissued birth certificate. Adoption can help safeguard a family’s financial future and protect an adopted child in several ways. If you believe that an adoption would be right for your family, consult an attorney as soon as possible.
SPECIAL NOTICE ABOUT THE CORONAVIRUS
The Law Office of Stephen Vertucci, LLC is open and practicing responsible business practices within the guidelines of the CDC. For years, our office has offered clients the convenience of telephone consultations and meetings, online document collection, and remote signing of documents. These services have been helpful to our clients and are available to help clients and potential clients who are quarantined or maintaining social distance due to the current coronavirus pandemic. We are concerned with your well being and available to help you and your family with your legal needs.