Family Law Attorney Kate Miller is the founder and owner of Miller Family Law, LLC in Denver, Colorado. Kate believes that divorce does not have to destroy lives, and wants to help her clients divorce as amicably as possible. She has the experience and skills to handle all facets of divorce and family law. In this podcast Kate answers questions regarding child custody in Colorado, including joint and legal custody, common parenting plans, and what happens if one parent moves the children out of state.
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Kate Miller is a Denver attorney focused exclusively on the practices of divorce and family law. She has lived many of the issues regarding divorce and child custody, and is passionate about helping people through this process.
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Read the Transcript of this Podcast Below.
Kate is there a difference between joint legal custody and joint physical custody, or are they the same things?
In Colorado there’s a difference between legal custody and physical custody. Custody is basically broken down into these two categories of legal and physical. Legal is the right to make decisions about the child’s care, education, health and religion, while physical custody is the actual time the child spends with either parent.
Custody issues are the most contested areas of family law, parents fight the hardest over children. Unfortunately parents will often use the child or children as leverage against the other parent. This is extremely destructive. Custody, which is often known as parenting time agreements that allocate legal and physical custody provide consistency and stability for children in a divorce.
One of my favourites is the condor analogy because it illustrates the destructive nature of parents fighting over their children. This analogy where condors, which are extremely rare birds with approximately 25 of them left in the wild, they build their nest at the cliffs edge. After laying
an egg, the condor’s squabble over which of them gets to incubate the egg. When Mom sits on the nest, Dad will jab her with his beak to try to get her to move. When Dad sits on the nest, Mom does the same thing to Dad. Condors become so engrossed in their fight that neither one of them tends the egg. Eventually their squabbling pushes the egg out of the nest and over the side of the cliff, where it’s smashed to bits. Condor specialists watch this happen helplessly from over a mile away.
Kate that is a great analogy. I think it really helps to drive home the point of how you can damage your children by fighting over your children. Let’s go on to talk about how a couple decides whether the children should live with one parent most or all of the time, or split their time between both parents’ homes. What do you think?
A divorcing couple can create their own parenting plan even if they’re not married and they’re just separated. They can do the same thing, they can create their own parenting plan. It’s important to keep in mind that whether they’re in a divorce or just a custody dispute you’re able to agree to anything, reduce that agreement to writing and file it with the court. These agreements are usually called stipulations. That word can be confusing for a lot of people. If people don’t agree, if parents or parties don’t agree, the court will issue an order deciding custody, also known as parenting time, issues for the parties.
As a general rule parties are always happy with an agreement they make because they know themselves and the children best as opposed to if the court makes the decision for them and then makes that decision a court order. As the attorney, I can’t and don’t make the really difficult decision of how a parent should parent his or her children. I do advise my clients of the law and encourage them to make decisions in the best interest of the children.
Ultimately if the parents do not agree on what is in the best interest of the children, the court will step in and make those parenting time decisions, which the court believes are in the best interest of the children. As long as the parents agree how to co-parent, whether or not they’re married, there’s a presumption that the parents know what is best for their children. Because of this a court doesn’t butt into parenting of the children unless the children are in danger or if the parents no longer agree what’s best.
This agreement on how to parent most often occurs when the parent’s divorce or break up, and fight over custody and decision making. Parents might have many reasons for wanting primary custody. Maybe one parent works nights and is unable to spend time during the week with the children. In that instance the parent would likely exercise time on the weekend, however the fact that a parent works a certain schedule does not guarantee specific parenting time. There are many factors that a court will consider.
Although parents may have reached an agreement on their own and attempted to live by their own understanding of what they agreed to without getting a court order, failing to reduce it to writing and getting a court order can cause lots of trouble. For example, if there’s ever disagreement in the future, these parties don’t have an enforceable court order, which means they’re forced to go back to court and argue everything from the beginning. It’s really messy and if the parties simply reduce the agreement to writing at the beginning and get the court to stamp it as a court order, they avoid this mess in the future. It’s a little work now that saves a lot of trouble later.
Kate, you’ve used the terms custody and parenting time, are those terms interchangeable in Colorado?
Custody refers to parenting time, decision making, custody is an all encompassing term which has a lot of different facets to it. We discussed earlier the difference between legal and physical custody. So, parenting time would be physical custody, while decision making would be legal custody, if you’re speaking as custody as whole it would be both of those things together although they can be divided out for court.
So we just talked about joint custody versus physical custody, and if the children split their time between two homes. Is it always 50/50? Can you tell us what are the most common types of arrangements for children’s living arrangements post divorce?
In Colorado plans are not always 50/50, they vary on each circumstance. In negotiation of a parenting plan the attorney, the parents, the court, they’re all part of the process through negotiation, mediation, and sometimes litigation.
Usually the parents agree on some things but not others. I put the agreements in writing and I try to reach agreement or compromise on the rest of the issues. If parents can’t agree on other issues or on any issues, then we go to court and we will argue our position. At that point the court will decide the disputed issue.
If you assume two healthy parents who live within 30 minutes of the children’s school and also assume that children are not too young, namely 5 years or older, then it is likely the children will spend time with both parents. While there are many reasons that the time spent might not be 50/50, for example work requirements, agreement of the parties, age of the children, whether or not the children have attached to a parent in a certain way. Parenting plans with two healthy parents are often 50/50 plans.
You had also asked about different kinds of 50/50 plans. There are several ways to form a 50/50. Any of the plans that I am about to discuss can be tailored to unique situations and still be 50/50 a plan. Generally the three most common are a 5-2-2-5 plan, a 3-4-4-3 plan, and the week-on, week-off plan.
In a 5-2-2-5 one parent has every Monday and Tuesday, including the overnight and the other parent has every Wednesday and Thursday including the overnight. Then the parents alternate the weekends. Weekends are defined as Fridays, Saturday and Sunday overnight. In the 3-4-3 plans there are no set days allocated to one parent or another, one parent has three overnights, the other parent has four overnights, the other parent has four overnights, and the other parent has three overnights. In the week-on and week-off, the parents will literally alternate every other week throughout the year.
I have found that courts generally prefer the 5-2-2-5 plan for several reasons. First in a 5-2-2-5, the child has a set schedule each week such that he or she knows what books, activity stuff to bring to each parent’s house. Second the 5-2-2-5 usually has the parent, whose parenting time is ending, drop off the kids at school and the parent whose parenting time is beginning picking up the kids after school. This minimizes transitions for the child. It also decreases the amount of time that parties see one another in a given week.
Another reason the courts like a 5-2-2-5 is that it allows the child to have frequent contact with both parents. Also the alternating weekends give each parent a weekend off every other week. Spouses that still live together but have separated to have decided to divorce have the same process of negotiating a parenting plan as parties who no longer live together.
Can primary parenting rights be taken away from the parents to whom they were originally assigned and awarded to the other parent? If so, under what circumstances?
Primary parenting rights can be taken away from the parent to whom they were originally assigned and awarded to the other parent. There are many reasons that someone would experience a change in primary care.
The basic answer, which might seem too simplistic is that life happens. If the primary parent becomes unable or even dangerous for the care of the child, the other parent can request a modification or change in primary parent.
Reasons this might happen is if the primary parent is arrested or puts the children in imminent danger through illegal drug use. If the primary parent has a change in circumstances like losing a house or job and is unable to provide for the children, there can be a change in primary care too.
If the court makes findings of a parental alienation then the court will likely change care to the non-alienating parent. If a parent needs to relocate such that sharing parenting with the other parent is affected then the court might change primary care in that instance as well.
Custody agreements can be changed in several different ways as a practical matter. If the parents agree to the change they can file a stipulation, this is the word for agreement, they can file that agreement with the court and ask the court to grant the agreement as an order. If the parents disagree the parent who wishes to change the custody agreement can file a motion to modify.
Motion to modifies are filed if you have already received a court order for parenting time and are now wishing to change it. In Colorado if the parties disagree they can modify if they have not yet filed for modification in the past two years.
You can also change the parent who has the majority of parenting time if facts have arisen since prior court order that were unknown to the court at the time of that order. For example there has been a change in the circumstances of the child or party with whom the child lives the majority of the time and that the modification is necessary to serve the child’s best interest.
Based on the individual circumstances of each motion the court will evaluate the motion and determine if the custody agreement should actually be changed. It’s really important when considering to change a custody agreement that parents keep in mind consistency and routine are really best for the children. So when it comes time to change an agreement parents should really look at whether the change is for them or if it’s for their children.
Is it possible for parents to have equal rights and decision making powers regarding their children, whether or not the children split their time equally between both parent homes?
It is absolutely possible for both parents to have equal rights and decision making powers regarding their children regardless of whether or not their time is split between homes. Parents have equal rights, that’s it, they have equal rights unless a court has deemed one parent unfit or a danger to the child. Parents usually have joint decision making.
There are a few exceptions like if a parent lives out of state with the children then the court might give the parent who lives in state with the children sole decision making. The reason for this is because it can be difficult to co-parent across state lines. Equal rights and decision making are separate issues from how parenting time is actually divided.
Many parents make this mistake of believing these issues are entwined. For example a parent might say that because the other parent has not paid child support that he or she cannot see the children for their court ordered parenting time or make decisions regarding the child. This belief is just incorrect. Assuming there is no court order to the contrary, a parent has rights to parenting time and decision making independent of child support. A parent gets to see the children and have decision making regardless of other issues like payment of child support.
How does a divorcing couple decide whether sole custody or joint custody is best for their family?
Legally if a parent gives sole decision making to the other parent, in this case that would be the legal custody, then that parent no longer has the ability to make parenting time decisions for the child. Most parents are not willing to forfeit their ability to make parenting decisions for their child. Again decision making is legal custody as we discussed before.
As a reminder custody is broken down into those two categories of legal and physical. Legal custody is the right to make decisions about the child’s care, education, health and religion, while physical custody is the time that child physically spend with either parent.
The very personal decision of whether to have sole or joint custody is one that each parent must make for themselves. I counsel clients to act in the child’s best interest when making these decisions. Generally parties try to keep consistency for their children. For example they keep their kids in the same school or activities, they keep them in the same house and then they split parenting time between the parents.
In making these decisions parents should decide how much time they can actually spend with the child. They should really look at how the plan can maintain a quality relationship with the children. Quality time is much more important than having more time. For example it is not in the child’s best interest for a parent to fight for a majority of time if he or she cannot actually spend that time with the children. And the other parent should be able to spend that time with the children before a nanny or babysitter is hired.
How does a joint custody agreement usually work?
A custody agreement, joint or otherwise, is reduced to writing so that both parties have an understanding of the agreement. This writing is called a parenting plan. Parenting plans outline parenting time including regular parenting time, vacation time, holiday time, decision making for both major and day to day decisions, relocation issues, contact between the parties and the child, transportation, tax dependency exemptions of the child, child support, and many more issues.
The parenting plan becomes an enforceable court order. If the parties are unable to agree the court will make its order regarding parenting time, decision making, and child support. And the court order will act as the parenting plan moving forward. Decisions considered major decisions are any decision that falls under the categories of religion, education, extracurricular activities, medical, dental and mental health, aside from routine care of course.
For example a decision to attend a school play is not a major decision, to change schools is a major decision. Day to day decisions can vary but generally day to day decisions are decisions for routine medical care like checkups or decisions for chores or allowance. There are three types of parenting time, regular, vacation, and holiday. Regular parenting time is the day to day agreement for parenting time. Regular time is usually divided into two categories, school year and summer time. But many parents choose to keep the regular schedule the same year round.
Vacation parenting time supersedes regular time such that a parent taking vacation that overlaps with the other parent’s time has priority. While both parents will usually have the option to take vacation time one parent will have priority in even years and the other parent will have priority in odd years to prevent an overlap of vacations. A parent who loses time due to the other parent’s vacation does not get to make up their regularly scheduled time.
The third category of parenting time is called holiday time. Holiday time supersedes both vacation time and regular time meaning that one parent cannot take a vacation on the other parent’s designated holiday. If a parent loses regular time because of the other parent’s holiday, the parent losing regular time does not get to make up that time. Holiday time is also alternated even in odd years. For example if Mom gets Christmas in an odd year, Dad will get Christmas in an even year. This makes holiday time even between the two parents in every two year cycle.
At what age can a child choose which parent he or she wishes to live with?
The age of majority in Colorado is 18 for parenting time and 19 for child support. Legally the court loses jurisdiction to enforce parenting time once a child has reached 18 years old. There are exceptions to this like a permanently disabled child or a child who emancipates early.
There’s a joke about this situation, does a 6,000 pound gorilla sleep? Anywhere he wants. The discrepancy between the parenting time age and child support age has created parenting time problems for many parents who find themselves with an obstinate teenager who no longer wishes to follow the court order.
For example it is extremely difficult to force a 17 year old who decides that he or she is just not going to go to the other parent’s house anymore to actually go. If the parent who is no longer getting time with the child files for relief from the court, the child will likely turn 18 before the court can enforce its order. Once the child turns 18, the court loses jurisdiction over the child regarding parenting time. The parent who is no longer getting time will still have to pay child support until the child is 19. Parents in this situation really need to choose how much money they’re willing to invest to enforce orders in those final teenage years.
How can a parent increase his or her chance of being awarded the primary custody of the children in Colorado?
This is an excellent question mainly because this question makes many of the common mistakes that parents first make in a custody battle. A parent should not try to seek the parenting time they think they should have as this shows they’re only looking out for their own wants or wishes and they’ve not considered the other party’s wishes or the child’s wishes.
Because a parent wants primary custody or sole parenting times does not mean that that’s what’s actually best for the child. The court generally takes the view that parents no longer love each other but just because the parent don’t love each other doesn’t mean that the children should be deprived of a relationship with both of their parents.
Keeping this in mind there’s some basic steps a parent can take that will help their case in a custody battle. If the parents are sharing a home during the case then things can get hostile and often do. A child can pick up on this hostility and act out. These act outs are called behavioural regressions. They can take many forms, bed wettings, school disruptions, excessive makeup, sexual promiscuity. All those things are examples of behavioural regression. Often parents will blame the other parent for this behaviour when they start seeing behavioural regressions. In actuality it’s not one parent’s fault, it’s both. This can be avoided by agreeing that one parent should leave the residence.
The important thing to consider if you are the parent leaving the home is to have a parenting time in place prior to leaving. You also want to make sure that even though you have left the home that you are actively making joint decisions for the children and participating in their lives.
Leaving the residence might decrease the hostility that the children are exposed to on a daily basis. Leaving with a plan and continued involvement in the children’s lives shows the court that you are not abandoning the children, that you have their best interest in mind by attempting to decrease their exposure to hostility and that you are remaining an active parent.
If you are the parent who remains at the home and the other parent chooses not to be involved or chooses not to exercise parenting time, you might want to keep a log of the actual time the other parent has spent with the children. Also you might want to save correspondence regarding decision making so that your attorney can present this relevant evidence to the court.
If there’s a lot of conflict between the parents, is joint custody still a possibility and how does this high conflict affect the children if it continues on even if it’s after the divorce?
If there’s a lot of conflict between the parents, joint custody is still a possibility. Unfortunately many parents are in conflict. This means that the children are often used as a weapon against the other parent. Many parents feel that they are helping their case by turning the child to their side.
They could not be more wrong. A parent who puts the child in the middle of a conflict is just asking too much of the child. A custody battle is hard enough for adults who are fully mentally developed and should be able to process the conflict. A child is not fully mentally developed and often does not understand and cannot process the conflict properly. Children will have behaviour regressions and mental breakdowns. These are signs that the child is struggling to process the conflict. These children need immediate help.
The best gift a parent can give his or her child in the midst of custody battle is the ability to just be a kid and not worry about the parent argument. After parents have received their orders regarding custody a way the parents can help is by not using the child as a message passer.
Don’t talk to the child about issues even if they’re directly to the child like activities. Don’t send the child to Mom saying you owe me money for volleyball because then that puts the child in the midst of the conflict. You need to send that message directly to Mom regarding that.
The only thing the child should ever hear is that the parents are working together for the child.
Is there any legal reason why fathers should not be awarded custody of their children just as often as mothers?
Colorado has a statute that says the primary caregiver cannot be imputed income if the child is under 30 months old. For example a stay at home parent with a baby under 30 months cannot be imputed income.
While this usually applies to women because the child generally forms a primary attachment to the woman through breastfeeding, it does not necessarily have to be a woman. A child can attach to the father too. Attachment is not who the child likes better which is a common misunderstanding. A child will attach to the person who provides safety, food, and a routine so that the child can develop safely. Attachment is more about the child’s survival in early development, which is ages zero to 5 than about preference to one parent or the other.
I said imputed income earlier. Just as an explanation, imputed income is income that the court says the party is capable of bringing in. To be imputed income the person being imputed does not actually have to have a job. The court will assign a figure of whether or not the person actually has a job for purposes of calculating maintenance, which is alimony and child support. It is important to note that if you are employed full time, which is defined as 40 hours, then the court will use your actual gross income not your net.
Imputed income comes into play if you are voluntarily under-employed or unemployed, in which case the court will impute income with some exceptions. An example of voluntarily unemployed or underemployed is let’s say a doctor and a stay at home Mom who has not worked throughout the duration of the marriage are now getting divorced. The doctor substantially out earns the stay at home Mom. When the doctor realizes he’s going to have to pay a lot of maintenance, which is alimony and child support, the doctor quits his practice and becomes a driver for Grub Hub. In this instance the court will likely impute the doctor at the income he was making as a doctor for the purposes of calculating child support and maintenance or alimony.
In this same hypothetical the stay at home Mom would also be imputed full time at minimum wage assuming the child is over 30 months and the court finds that mother is not able to obtain better employment, better employment meaning she doesn’t have special education or training that would allow her to re-enter the workforce and earn more than minimum wage.
If a child is living by choice with one parent full time, but the court granted joint physical custody with both parents, should the de facto full time parent apply to change the arrangement from joint to sole custody? How would that affect both parents?
Yes the de facto parent should apply to change the arrangement. This is a great example of how custody agreements can be changed. You should modify the agreement so that the enforceable court order is reflective of actual parenting time. If you don’t modify and the last court order says joint custody while you’re actually accessing full custody, you have no way to enforce the current arrangement.
For example if a parent who has had little to no time with the children randomly decides to start exercising time, you have to go to court to get the most recent court order made in order to see what’s enforceable. An example of this is when you have two parents living out of state and one parent has almost 100% of the time and the other parent might just have one or two overnights, for example holidays or summer.
But the parent who has the children the majority of the time if their agreement says that they have 50/50 they should absolutely go back to court so that the agreement shows that one parent is only getting the time that they’re getting. If they fail to do so, for example of the parent who is only getting holidays and summers, could attempt to enforce the 50/50 parenting time arrangement. And it seems relatively obvious how that could be problematic, particularly with parents in different states.
If one spouse is exercising visitation or their parenting time with his or her kids, can the custodial parent move with the kids to another state? If so, under what circumstances could this happen?
This is another great question. You asked whether one parent could relocate with the children to another state when the other parent has court ordered parenting time. It is important to note that parents have a constitutional right to travel. This means that the parent can move without legal ramifications. However the parent cannot move with the children unless he or she has a written agreement or a court order.
If a parent moves with the children without an agreement or a court order, it can be seen as parental kidnapping. Many parents will attempt to move with the children as a way to get the case in the state they want.
In order for a state to even hear a case involving child issues that state must be the home state of the child. A state obtains home state status if the child has lived in the state for six months or more, if the child is younger than six months, if the child has lived in that state since birth, and if there has not been a previous court order regarding the child. So, they must meet both the criterias of timing and this being the first court order.
At its most basic, relocation is when one parent wants to move with the child to a new location, which substantially changes the geographic relationship with the other parent. There are two basic types of relocation, relocation in the initial proceeding and relocation after the parties have obtained a court order.
The second relocation after parties have obtained a court order, it’s called post-decree relocation. In an initial proceeding, the legal standard is best interest of the children. In the initial custody proceeding the parents are on equal footing because there is not an existing court order or parenting plan that has been established. Parents are implicated in a more direct way in post-decree relocations because the parties already have a court order, which determines custody.
Custody has not yet been determined in the initial proceeding whereas in the post-decree there is an existing order that provides some stability for the children. Because custody has not yet been determined in the initial proceeding there is no reason to treat the initial custody proceeding with a relocation component any differently than a regular case. There is a reason however to treat the post-decree relocations differently because there’s a level of disruption caused by a change in circumstances and there’s a need to protect the parent’s right.
So, in order for a parent to relocate with the children after he or she has obtained a court order for parenting time, the relocating parent would need to file for relocation and be in agreement to modify the parenting plan. In deciding the new parenting plan and whether the children are permitted to move with the moving parent, the court will consider two statutory factors. This analysis includes but isn’t limited to whether the new residence with substantially change the geographic region between the child and the parent who stays behind, and whether the move is in the best interest of the children.
If the primary parent is permitted to move out of state with the children, how would this affect the other parent’s rights to see his or her children?
Generally the visitation decreased due to travel costs and availability. Most long distance plans consist of long holidays and summer parenting time. There are ways for a parent who has reduced time to maintain an active relationship with the children though. Relationships are formed on shared experiences.
While this is difficult in a long distance relationship it’s not impossible, you can send emails, texts, or letters. I would recommend providing self addressed stamped envelopes to make it really easy for children to respond. Keep a list of things you talked about the last time in your conversation and follow up on those things in your next conversation.
Watch a show together online, use instant messaging to comment on the show, have a clear schedule so when the parent can call and talk to the children so that they’re ready to talk. Respond to any attempts from the child to communicate with you. If a child attempts to talk to you and you do not respond the child will stop trying.
Also remember that travel is much tougher on children than adults, so consider travelling to visit the children instead of having them travel to visit you every time.