A divorce is one of the hardest things a person can go through. It’s even harder with children involved, and disagreements persist over parental responsibilities. If you and your former partner can’t work out a parenting plan, the court must intervene. Having an experienced family law attorney at your side always helps. Yet, the legal process can still feel overwhelming when you’re not sure what happens next. With that in mind, here are answers to common questions about court in Colorado child custody cases.
Sometimes. The sheriff in the county where the parent-to-be-served resides can serve the papers. If you file a custody case in Arapahoe County, for instance, but the other party lives in Denver, then the Denver County sheriff may serve the papers. A sheriff’s deputy can also serve the papers.
By the way, the parent-to-be-served is called the “respondent.”
Alternatively, you could hire a private process server or any person age 18 and older can serve child custody papers so long as they are not a party to the case.
For example, a parent cannot serve the papers to the other parent. Whoever serves the papers cannot be a party to the case.
When you are served with “custody papers,” it means your child’s other parent has initiated an action for allocation of parental responsibilities to the court. As part of that filing, the other party may have even submitted their own proposed parenting plan to the court. By requiring service, the court is ensuring that you are aware of the request to formalize a parenting schedule and is providing you an opportunity to provide your position as to those requests.
You have 21 days, from the date you are served, to provide the court with your response to the initial petition. It is never a good idea to not respond to the court filings. Even if you respond directly to the filing party, be sure to formally participate in the case by filing your response and other pleadings. If you have not filed your position as to the issues with the court, the judge has no way of knowing you wanted to participate in the proceedings.
If you do not respond in the case, or you do not ‘meaningfully participate’ in the proceedings, the court has the ability to enter a ‘default’ against you. This means that the case will progress and orders will be entered without further notification to or participation from you. In a default situation, it is extremely likely the court will enter the other party’s requested parenting schedule and support award.
The respondent has 21 days to respond once he or she has been served “custody papers.” If they fail to respond, the parent who filed the custody papers can ask the court to issue a default decree.
For example, if you filed for custody on April 2 but your ex didn’t get served until April 5, then they have until April 26 to answer. The Colorado Rules of Civil Procedure, Rule 12, specifies 21 days, not 21 business days.
The process server — options on who may qualify to provide service are discussed above — will fill out a Return of Service affidavit, telling the court:
- Who was served (with a physical description of the person)
- When and where they were served, and
- What documents they were served with
The process server will deliver the affidavit to you. Next, you must file that with the court as proof of service. This document notifies the court that the other party is now aware the case has been filed and the matter is ready to move forward.
If a request to enter a default judgment is granted, the court will set a final hearing to resolve the outstanding issues. You may or may not recieve notification of the default hearing depending on your participation following formal service. In the event a default judgment is entered against you, there may be several options available to have the order modified or even set aside.
Vacating a Default Judgment
Your available timeline and options for addressing the entry of a default judgment depend on 1) the reason why you are requesting relief from the order and 2) what type of judicial officer entered the default judgment (was it a magistrate or a district court judge).
While there valid reasons for setting aside an order, the relief is considered extraordinary and will be narrowly interpreted. The preference of the court is to maintain the finality of its orders, and absent just cause, existing orders will not be set aside. Acceptable reasons for requesting relief include:
- clerical mistakes (the entered order stated $5,000 when it should have been $500)
- Mistake, inadvertence, surprise, or excusable neglect
- Fraud, misrepresentation, or other misconduct by the other party
- The judgment is void
- The judgment was satisfied, released, or discharged, or a prior judgment on which it was based was vacated
- Any other reason justifying relief from the operation of the judgement
The initial status conference — or ISC — is a preliminary appearance in divorce and child custody matters. It’s the court’s first opportunity to meet the parties and hear the issues involved in the case, it is also a case management setting, whereby the court will provide the parties notification of various deadlines for the case and its overall expectations for moving the matter forward. The purpose of the initial status conference is “to provide a uniform procedure for resolution of all issues in domestic relations cases that reduces the negative impact of adversarial litigation wherever possible.” — Colorado Rules of Civil Procedure 16.2
Before the status conference, each party ideally will have:
- hired an attorney
- filled out mandatory financial disclosures, and
- attended a parenting class
Either party may request a temporary orders hearing. If granted, following the temporary orders hearing the court could issue orders for:
- temporary child support,
- temporary parenting time,
- temporary maintenance (alimony),
- temporary payments of marital debts, and
- perhaps even prospective attorney fees.
These orders stay in place until the court issues permanent orders at the final hearing. Temporary orders do not affect the positions or orders that may be entered at a final orders hearing.
Emergencies can arise in family law cases. When they do, there are multiple ways of bringing them to the court’s attention. For example, if one of the parties has been abusive and presents an “imminent danger” to the child(ren), a motion to restrict parenting time may be filed resulting in the judge allowing only supervised visitation, or no visitation, for the other parent.
In the event the parties are unable to reach agreements as to issues, an evidentiary hearing is your opportunity to inform the court what you are asking for and why. Here, both sides will present their evidence, examine and cross-examine witnesses, and make their effort to convince the judge his/her requested relief should be the appropriate order.
A post-decree hearing is no different than the hearings discussed above. It simply occurs after the original orders have already been put into place (i.e. AFTER the decree has been entered). Most of the time, these types of hearings will deal with issues surrounding modification request or even enforcement issues.
In a Colorado child custody dispute, getting the right witness on the stand can make all the difference in your case’s outcome. However, it is generally best to ask the person for their testimony before compelling their attendance through a subpoena.
Who Can be a Witness?
Any person who can give credible testimony about the outstanding issues related to your case ) can potentially be a witness.
Appropriate witnesses might include:
- child care workers
- medical professionals
- social workers
- law enforcement officers
- coworkers of either parent
- family members
- friends and neighbors
When one parent answers the other parent’s petition for custody with their own petition, it’s called a counter petition. These petitions can also be referred to as a “counterclaim.”
For example: Your ex-spouse has filed for custody, or has petitioned to modify the current order and parenting plan. You have three choices:
- Do nothing, and risk a default judgment granting your ex all or most of what they asked for in their petition;
- File an answer, indicating that you disagree with some of the provisions your ex has requested, and intend to present your side in court; or
- File a counter petition, and let the court know you have your own custody and parenting time requests.
A motion to compel is when one party asks the court to make the other do what it is supposed to do. If a motion to compel compliance from the other party is granted, it may also include various sanctions that have been awarded against the non-complying party (i.e. attorney fees or even exclusion of evidence or witnesses).
You have questions you’d like your ex-spouse to answer under oath. You may also be aware of certain documents, images, electronic files, or other items that could help your child custody case. However, only your ex-spouse has access to this information, and is not likely to provide it willingly.
Serving discovery is a legal way to obtain materials and get answers to pointed questions. Your ex can say ‘no’ when you ask, but they can’t refuse if the court asks. The most common types of discovery are found in Colorado Rules of Civil Procedure (C.R.C.P Rules 33 and 34). The C.R.C.P breaks down this process as “interrogatories” and “request for production of documents.”
Once served with discovery, the other party has 35 days to provide the information and documents requested. These can include:
- School records and/or discipline reports
- credit card statements
- written answers to carefully-crafted questions about their parenting
- past work and travel schedules, and more
Of course, one or both parties may ask the court for a short extension if they are unable to provide all the materials in 35 days. As long as the request is reasonable and not made for the purpose of causing delay, it will usually be granted.
Motion to Compel
Once a motion to compel is filed, the judge may order that responses and materials be provided within a specified period of time. The court can also grant the non-offending party attorney fees or other sanctions depending on how egregious the behavior is from the non-complying party.
A motion to intervene allows a non-parent to become a party in an open child custody case.
It is commonly used as a method to try and assert a claim for ‘grandparent visitation.’. The grandparent, or non-parent, can file the motion in any open or previously filed case involving the minor children.
The statutes discussing the motion to intervene are covered under Rule 24 of the Colorado Rules of Civil Procedure.
Psychological evaluations may occur in child custody disputes for limited reasons:
- If the mental … condition of a party is in dispute and directly related to issues surrounding parenting time. This authority stems from C.R.C.P. rule 35 and C.R.S. 14-10-124 best interest of the child standards.
- Through the appointment of a Parental Responsibilities Evaluator. — Colo. Rev. Stat. § 14-10-127(1)(a)(I)
If you find yourself involved with a custody evaluation (i.e. Child and Family Investigation / Parental Responsibilities Evaluation), here are some tips to help you prepare:
Understand Your Strengths and Weaknesses
Be honest about what you do well as a parent and the areas you need to work on. List a few ways you could improve your parenting skills or your relationship with your child(ren). Be prepared to discuss all of this with the evaluator.
Understand the Process
Remember, the court wants to put together a custody/parenting plan that’s best for the child. Will you be asked difficult questions about your past? Yes. Will the evaluator ask about any drug use and mental health issues? Yes. Could the evaluation be uncomfortable? Possibly. But your answers matter, and the key is not to get overly defensive about the questions.
If you’re worried about what your history could reveal about you, talk to your lawyer. Your attorney can help put you at ease about admitting your flaws or owning up to your history.
Be Prepared to Sign Releases
The evaluator will want to interview other people who can shed light on each party’s parenting and the child’s overall situation. For instance, the evaluator may talk to your child’s school officials, therapists, or their pediatrician. You will be asked to sign release forms allowing these interviews to happen. While you have a right to refuse these interviews, your resistance will be noted in the final evaluation.
The evaluator will also need releases to get access to your mental health information. You cannot be compelled to give this consent, however, your refusal will be noted.
In any case, talk it over with your attorney if you’re unsure or don’t want to sign the releases.
Bring Up Your Concerns About the Other Parent
If you’re legitimately worried about your ex-partner’s ability or willingness to be a responsible parent, speak up. However, be prepared for what and how much you want to say. Don’t ramble. Don’t exaggerate. It’s important to express your concerns clearly without appearing petty or vindictive. Remember, you are being evaluated too.
One of the worst things a parent can do in the middle of custody proceedings is to lie. When answering difficult questions about yourself, be candid and cooperative. Prepare your answers to make sure they’re true. When discussing your concerns about the other parent, keep your recollections or allegations tethered to the facts, not your emotions about what you’re recalling.
If you have any materials that can back up what you tell the professional evaluator, have them ready. You don’t have to document every little thing, however, some key evidence can go a long way. Text messages and emails, for example, are a great way to show how the other parent communicates with you (and the children) when nobody else is watching.
Limit text and email communication samples to just a few. Other helpful evidence can include your child’s behavioral or academic report cards, treatment records, or the child’s Individual Education Plan (IEP) if they have special needs.
Make sure to go over these tips and all your concerns with your attorney before meeting with the evaluator. It’s always better to go into the evaluation with a plan you’ve discussed with your attorney.
The most important thing to understand about a child custody proceeding is that the court is most concerned about your child’s best interests. Your custody and parenting time wishes are important, but they take a back seat to your child’s needs.
“The general assembly hereby declares that children have certain rights in the determination of matters relating to parental responsibilities, including: the right to have such determinations based upon the best interests of the child.” — C.R.S. 14-10-123.4
Colorado Child Custody Factors
You are not on trial. You are one of the parents involved in a child custody dispute. The court must decide how to divide parenting time and decision-making responsibilities between two parents who do not live together. To do that, the court has a statutory obligation to consider the following factors:
- The parents’ wishes
- The child’s wishes (if he or she is mature enough to express an independent preference)
- Current relationships among family members
- The child’s ability to adjust to their home, school, and outside activities
- Any domestic violence issues
- The child’s mental and physical health, and of all family members involved in the child’s life
- The ability of all parties to encourage a relationship and contact with the other parent (except in cases of abuse or neglect)
- The involvement of each parent in the child’s life prior to the case
- The distance between the parents’ homes
- The ability of each party to place the child’s needs ahead of their own
The court is there to decide what kind of parenting plan is best for your child(ren) now that you and the other parent are splitting up.
Text messages can be valuable evidence in a contentious child custody proceeding. After all, many people text more than they talk, and those texts leave a digital record of what has been said.
Text messages may be introduced as evidence provided they meet certain conditions.
First, they must be authenticated. A name on a text message is not enough to prove that person sent the text. You must be able to provide enough information to the court to show that it is a true and accurate copy of what you are saying it is.
Second, the messages must be legally obtained. If you submit text records (or even screenshots of texts) between your phone and another person’s phone, you’re fine.
However, if you surreptitiously obtain texts between your ex-partner and someone else, those probably will not be admissible. For example, you cannot ask one of your older children to get hold of your ex-partner’s phone and secretly retrieve texts.
Most importantly, don’t forget that you have to have actual knowledge of the context of the message, who sent it, when it was sent, why it was sent, etc.
Watch What You Send
Since Colorado courts can admit texts as evidence, think twice before sending an insulting, offensive, or abusive message to your ex-partner. Consider how such a message sent in the heat of anger or frustration might hinder your custody case or even be taken out of context when introduced to the judge.
This is a difficult question to narrow down. The cost of hiring a private investigator depends on multiple factors, such as:
- whether the P.I. will charge a flat fee ($1,500 to $5,000 depending on their services) or by the hour ($25 to $250 per hour);
- the reputation and experience of the P.I.; and
- how long the investigator will be on the case.
An experienced and successful private investigator will often charge considerably more than one just starting out. This is not only due to them being in higher demand but also the range of services they can provide:
- Background Checks – Scrutinizing the other parent or new romantic partners that will be around the children.
- Neighbor Canvassing – Interviewing neighbors and parents of the kids your children play with to gain information about their welfare.
- Surveillance – Watching the other parent’s activities to determine if they are neglecting or abusing the children or bringing unsavory people into the home.
A private investigator is likely an expensive option for a child custody matter. If you are considering hiring a private investigator in your case matter, talk to your attorney about the situation to better determine if this would be a helpful course of action.
Justice is supposed to be blind to factors that have no bearing on the matter at hand. Most family court judges adhere to this principle. Still, it’s important to show respect for the court.
To dress for court, put together an outfit that you would wear for your first day at a new job: friendly, approachable, competent. Think business casual. Clean jeans are fine.
Be respectful of the environment that you are in. If you have concerns or questions if your appearance is appropriate, ask your attorney.
The biggest advice we can give: be comfortable and wear clothes you feel confident in. With all the other stressors of the situation, pinchy shoes should be the least of your concerns.