You’re probably familiar with terms such as “child custody” and “alimony.” However, you may not hear those phrases from your Colorado family law attorney. This article teaches you about the frequently used terms you can expect to encounter in your Colorado family law case.
A parenting plan is a formal document that addresses both parenting time and the allocation of decision-making responsibilities. The Practitioner’s Guide to Colorado Domestic Relations Law § 4.6 (2019)
In layman’s terms, a parenting plan spells out exactly how much time a child will spend with each parent and how the parents will make decisions regarding their health care, education, religious upbringing, and more.
Parenting time is exactly what it sounds like: a schedule that identifies when the child spends with each parent. It is sometimes referred to as a visitation schedule.
There is no default parenting time schedule in Colorado. Instead, each child and the circumstances he or she presents will be the focus of an individualized parenting plan that will be in that child’s best interests. The Practitioner’s Guide to Colorado Domestic Relations Law § 4.5 (2019)
The Expectation of Parenting Time
Every Colorado parent is entitled to reasonable–although not necessarily equal–parenting time unless the court finds that spending time with one parent is detrimental to the child’s physical health or emotional well-being. Even if the court finds that one parent is unfit to share decision-making responsibilities, that parent may still be entitled to parenting time as long as he or she does not endanger the child.
When Parenting Time May be Restricted
The court will not restrict parenting time unless it finds a parent is endangering their child’s physical health or emotional development. Colo. Revised Statutes § 14-10-129
If you believe your child’s other parent is placing your child in imminent physical or emotional danger, you can file an emergency motion to restrict parenting time with the court. C.R.S. § 14-10-129
In 1999, the Colorado General Assembly replaced the terms “legal custody” and “joint custody” with decision-making responsibilities. In re Marriage of Roosa, 89 P.3d 524, 527 (Colo. App. 2004)
Decision-making responsibility is another term that means what it sounds like: the responsibility to make major decisions about a child’s well-being. This includes decisions about health care, education, religious upbringing, and extracurricular activities that may occur on the other parent’s parenting time.
The court may allocate decision-making responsibilities with respect to each issue affecting the child:
- jointly between both parents
- individually to one parent or the other; or
- a combination of both. C.R.S. § 14-10-124(1.5)(b)
For example, a court can allocate responsibility for major educational decisions to one parent, but the other parent may be responsible for major medical decisions. A court can also allocate sole decision-making responsibility to one parent if you and your spouse are unable to agree. The Practitioner’s Guide to Colorado Domestic Relations Law § 4.4 (2019)
Unlike many other states, Colorado does not define child custody in terms of joint or sole custody. Instead, the court uses the term parental responsibility. This can be primary or joint.
Additionally, Colorado child custody laws split custody into two categories: parenting time (physical custody) and decision-making (legal custody.)
Physical custody, or parenting time, refers to living arrangements. You have primary physical custody if your child lives with you all or a majority of the time.
Legal custody is also referred to as decision-making authority. A parent with legal custody has the authority to make major decisions about how the child is raised.
Typically, if a parent has fewer than 91 overnight visits a year with the child, the other parent is considered by the court to have primary physical custody. If you and the other parent have 92 overnights up to an equalized parenting schedule, then you share joint physical custody.
Joint Legal Custody
Joint decision-making responsibility (or legal custody) occurs when the parents have to share the responsibility of making decisions regarding education, health care, religious upbringing, and other matters.
Be aware that these terms do not exist in Colorado. Frequently, sole legal custody is when one parent is able to make all major decisions regarding the child without consulting the other parent.
A parent has sole physical custody when the child lives with them all or a majority of the time.
Visitation refers to the right of a non-custodial parent to see their child, or temporary custody that has been granted to an otherwise non-custodial parent or relative.
Even if your child does not live with you primarily, you likely will still have visitation rights as long as it is in the child’s best interests.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Colo. Rev. Stat. §§ 14-13-101 to -403 (2023), establishes a comprehensive framework for Colorado courts to follow to determine whether it may exercise jurisdiction in a child-custody matter or whether it must defer to a court in another state. People ex rel. G.C.M.M., 2020 COA 152, ¶ 1, 477 P.3d 792, 793
“The UCCJA was enacted to extend the notion of full faith and credit to child custody decrees and its provisions seek to limit the exercise of jurisdiction over custody decrees to one state thereby eliminating forum shopping.” In re Custody of K.R., 897 P.2d 896 (Colo. App. 1995).”
When Colorado Has Jurisdiction in a Child Custody Case
A Colorado court has jurisdiction when your child has lived with a parent in Colorado for at least six months before the action was filed. Colo. Rev. Stat. § 14-13-201(1)(a) If your child is less than six months old, he or she must have lived in Colorado since birth.
The other three bases for establishing jurisdiction apply when Colorado is not the child’s home state. They include significant connection jurisdiction, more appropriate forum jurisdiction, and last resort jurisdiction. People ex rel. G.C.M.M., 2020 COA 152, ¶ 1, 477 P.3d 792, 793
A court must determine your or your spouse’s gross income before calculating child support or spousal maintenance. Gross income is pre-tax income, however, if you are self employed your reasonable business expenses and costs are considered and deducted from your income analysis.
For these purposes, gross income refers to income from any source and includes, including but not limited to:
- income from salaries
- severance pay
- trust income
- capital gains
- Social Security benefits
- workers’ compensation benefits
- unemployment insurance benefits
- disability insurance benefits
- alimony or maintenance Colo. Rev. Stat. § 14-10-115(7)(a)(I)(A)
Legal separation in Colorado accomplishes everything a divorce does, with one glaring exception–you will still be legally married. Sometimes couples choose this arrangement so that one spouse can continue benefiting from the other’s health insurance. Tax purposes can be another reason for legal separation rather than divorce.
After you have been legally separated for six months, you can file a motion to convert the separation into a divorce. Colo. Rev. Stat. § 14-10-102(2) Neither you nor your spouse can get remarried until you have done this.
Property Acquisition & Debt Accumulation During Separation
Importantly, any property you acquire while legally separated is not considered marital property. C.R.S. § 14-10-113 So, if you buy a vehicle while legally separated from your spouse, that vehicle is not subject to division upon divorce.
Equally important, or perhaps more so to some, any debt amassed during a legal separation is not considered marital debt. Whatever debt your spouse takes on won’t be your responsibility – and vice versa.
A common-law marriage is established when two people agree to be spouses and then mutually hold themselves out as a married couple.
Here are some examples that courts will accept as evidence of a common-law marriage:
- joint banking and credit accounts
- purchasing and owning property together
- the use of the man’s surname by the woman
- the use of the man’s surname by children born to the couple
- the filing of joint tax returns.
The Colorado Supreme Court very recently announced a trilogy of decisions: Hogsett & Neale, 19 SC 44, 478 P.3d 713 (Colo. 2021), In re Estate of Yudkin, 2021 CO 2, 478 P.3d 732 (Colo. 2021), and In re Marriage of LaFleur & Pyfer, 2021 CO 3. These rulings changed the previously standing “test” in establishing a common law marriage.
In Hogsett, the court held as follows:
“We refine the test from Lucero and hold that a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. Per the Court, the new “core query is whether the parties intended to enter a marital relationship – that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation.”
Ending a common-law marriage requires going through the same legal process as you would during a divorce.