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A Trusted Resource For Matters Related To Child Custody, Visitation And Support

Issues related to children are, understandably, some of the most stressful aspects of family law. At Harrington Brewster Mahoney Smits, P.C., our attorneys are ready to provide experienced guidance and counsel designed to protect your children and your relationship with them.

The Basics Of Child Custody In Colorado

Child custody (referred to in Colorado as “allocation of parental responsibilities” or “parenting time”), is based on a number of factors related to the best interests of the minor child. Factors relevant to the best interests of the child include the wishes of each parent; the relationship of each parent to the child; the child’s connections to their home, school and community; whether the parents are able to encourage love, affection and contact with the other parent; and each parent’s past patterns of involvement with the child. Contrary to popular belief, there is no specific age at which a child must be to choose which parent they will reside with. Instead, if a child is sufficiently mature to express an opinion on custody, their opinion will be considered along with the other factors related to their best interests.

When making agreements regarding parental responsibilities (custody), parents will ultimately enter into a “parenting plan” to address overnight schedules and the delegation of major decision-making for the minor child. Major decisions include the areas of medical care, mental health care, education (including choice of schools) and religion. While it is often standard for parents to share decision-making in all major areas, there are some cases in which allocating major decision-making to one parent over the other is appropriate.

Overnight schedules determine when the child will spend time with each parent and often include separate schedules for regular parenting time and holiday or vacation parenting time. While many families determine that equal (50-50) parenting time is best for their child, there is no standard custody arrangement, and the best interests of the child are always considered when determining parenting plans.

Our attorneys at Harrington Brewster Mahoney Smits, P.C., have a long history of successfully working with families – whether in the context of mediation, collaborative law or traditional litigation – to reach parenting time/custody agreements. Our lawyers recognize that children are often the most fragile and unintended victims in divorce. They strive to assist families in transitioning through the divorce process with comprehensive and fair parenting plans while keeping the needs of their children at the forefront of every custody decision.

There Are Numerous Considerations When Calculating Child Support

Child support in Colorado is calculated pursuant to a formula that considers the monthly gross income of each parent, the number of children shared by the parents, annual overnights in each parent’s home and additional payments for the children, including insurance and other “extraordinary” expenses. When determining gross income for the purpose of calculating child support, all sources of income are included, including pretax employment income, bonuses, commissions, alimony, interest or dividends, retirement/pension benefits, unemployment compensation, workers’ compensation benefits and substantial work-related benefits (company car, meal reimbursements, etc.). Gross income does not include child support for children from other relationships, income from a new spouse or public assistance benefits.

Additional expenses for the children can be included in the child support calculation. Examples include health insurance, extraordinary expenses such as private school tuition or specialty programs needed for the child’s education, recurring uninsured medical expenses and child care. If a parent is unemployed and seeks to modify child support based on their lack of income, the court may still impute (assign) the unemployed parent income based on their employment and earning history.

Monthly child support can be modified if there is a substantial and continuing change of at least 10% in the financial circumstances of the other parent. Child support terminates when a child reaches age 19. Our lawyers are experienced and successful in negotiating and litigating modifications of child support when a change in support is necessary.

What Child-Related Rights Do Grandparents And Other Third Parties Have?

While Colorado law grants certain rights to grandparents and other third parties in a number of specific instances, the United States Supreme Court ruling, Troxel v. Grandville, limits those rights, especially when contested by the child’s biological parent(s).

Custody/allocation of parental responsibilities: In Colorado, grandparents and other third parties may petition a court for custody/allocation of parental responsibilities (including court-ordered parenting time and decision-making responsibilities) for a minor child if that child has lived with them for 182 days. If the child lived with the grandparent or other third party for 182 days or more but was taken back by the parent(s), a petition for custody/allocation of parental responsibilities must be correctly filed within 182 days of the child no longer living with the grandparent or third party.

Visitation: While grandparents do not have visitation rights to their grandchildren if the grandchild’s parents are living and married, grandparents may seek court-ordered visitation with their grandchildren if the parents of the child have been involved in a child custody case, the child is in the custody of a nonparent or the grandparent’s child (one of the child’s parents) has died.

Guardianship: Grandparents may be appointed guardians of a grandchild anytime the child’s biological parents agree to the guardianship or if the child is in need of a legal caretaker and the guardianship is in the child’s best interests.

Cases involving grandparents and other third parties’ rights in connection with minor children are complex and generally require the guidance of an experienced family law attorney. These cases frequently turn on a number of fact-specific circumstances that differ from case to case. Our lawyers are experienced with cases involving grandparents and third-party rights and understand the importance of these relationships for children.

Protecting Children By Seeking Emergency Restrictions On Parenting Time

A parent may file an emergency motion to restrict parenting time if they have reason to believe that their child is in imminent danger of physical and/or emotional harm as a result of the other parent’s parenting time and/or contact with the child. The filing of such a motion results in the automatic restriction of the other parent’s parenting time, which continues until a hearing can be held on the motion. Any parenting time that occurs between the child and the restricted parent prior to this hearing must be supervised. The court is required to hold a hearing on the emergency motion restricting parenting time within 14 days of the motion being filed.

While emergency motions restricting parenting time are an important way to quickly ensure a child’s safety until the court can address the specific circumstances causing the imminent danger, such motions should not be filed unless absolutely necessary. Like many other issues in child custody cases, emergency motions restricting parenting time turn on the uniquely specific facts of each case. Parents contemplating the filing of such a motion should be aware that, in addition to the time and expense resulting in connection with having the required hearing on an emergency motion, the court can order the filing parent to pay the restricted parent’s attorney’s fees and costs if the court determines that the emergency motion was frivolous, groundless or vexatious. The issue of cost aside, the wrongful filing of such a motion can also result in a number of unforeseen consequences for the filing parent, such as a loss of credibility with the court and any other child-related experts involved in the case. The wrongful filings of such motions are also frequently raised in both initial and post-decree proceedings as evidence that the filing parent is unable to prioritize the best interests of their child or encourage the child’s relationship with the other parent.

Our lawyers can provide insight regarding whether the filing of such a motion is appropriate as well as the possible ramifications that filing such a motion may have.

Discuss Your Legal Needs During An Initial Consultation

To learn more about how our attorneys at Harrington Brewster Mahoney Smits, P.C., can help you, contact our office in Denver to schedule your first meeting. Just call 720-736-7078 or submit an online contact form.