Learn about parenting time in Colorado

Parenting time refers to the court ordered  time a parent spends with their child(ren) after a divorce or breakup. It is also commonly known as  “custody” though that stopped being a legal term in Colorado during the 1990s.

In Colorado, allocation of parental responsibilities (APR) refers to the case type that determines duties and rights of each parent after a divorce of a married couple with children or a breakup of those couples who have children but never married. This will automatically be included in a divorce proceeding in Colorado. If there is no divorce because the parties were not married, the APR will need to be initiated by its own petition.  Either parent may initiate an APR proceeding–as well as others who may have standing.

There are two things the Court will consider in an APR case:

• Physical care and control of the child, or “parenting time” and
• Decision-making authority

Parenting time is the physical custody of the child(ren). It is the time each parent has physical access to, and responsibility for, the child(ren). Generally, it is the amount of overnights a parent will have.

Decision making is all the major decisions that need to be made for a child–medical, education, religion and extracurricular activities.

The Courts aim to have both parents equally involved with the children.  This does not mean the parents will end up with exactly a 50/50 split of parenting time. If a child(ren) lives with one parent more than half of the time, that parent is considered the primary parent.  That does not necessarily mean that they have more say than the other parent does.  Courts will want both parents involved in decision making which is why it is very challenging to obtain sole decision making as a parent for your child (ren) in an APR.

When parents are unable to reach an agreement on a parenting plan of their own, they will first be ordered into mediation to attempt to obtain an agreement with a third party mediator, and if that fails, a court must decide. In every case, the best interests of the child or children — including their physical and emotional safety — is the court’s top priority.

To determine this, a court will consider several factors:

• The parents’ and child’s preferences (if the child is mature enough).
• The relationships of the child(ren) with parents and immediate family.
• How the child adjusts to home, school, and community.
• Mental and physical health of all individuals involved.
• Past patterns of parental involvement and mutual support.
• The physical distance between each parent’s home.
• Each parent’s ability to support the child’s relationship with the other parent.
• Each parent’s ability to prioritize the child’s needs.
• A history of child neglect or spouse abuse, if any.

You can learn more details about each of these factors if you’re curious.

To investigate any of the above factors, the court may appoint a Child and Family Investigator or a Parental Responsibilities Evaluator.

The Child and Family Investigator (CFI) and Parental Responsibilities Evaluator (PRE) have similar roles. However, the PRE has significantly more qualifications and abilities than the CFI and can investigate and conduct testing or recommend to the court testing on mental health and substance abuse issues.

Although rarely used in divorce proceedings, the court may appoint a Child Legal Representative (CLR) to specifically advocate the child’s positions during parenting time cases. The CLR has the authority to conduct independent investigations. — C.R.S. 14-10-116.

Yes, a court can deny or restrict a parent’s parenting time if they find the child(ren) may be endangered, either physically or emotionally, if the parenting time continues. This does not mean that a parent’s rights have been terminated.

Such a determination could be based on:

• Substance abuse
• Neglect
• A history of child abuse
• Domestic violence
• Any other serious concerns about the child’s well-being.

A parent is not permitted to change any parenting orders or withhold the child from the other parent without court order even if they believe the child may be in danger. Parents must follow proper procedure to obtain a court order denying or restricting a parents parenting time. Withholding a child from a parent could result in a contempt of court filing against a parent/party even if they believe they are acting in the child’s best interest.

A Motion to Restrict Parenting Time

This motion, filed with the court, seeks an immediate stop to parenting time due to significant and current endangerment issues.  This motion is self-effectuating, meaning it is active and enforceable upon filing.  The result is an immediate suspension of parenting time against who the motion is filed. Since these are considered emergencies, they have priority on the court’s docket and must go to hearing within 14 days.  During the period between filing and hearing, the parent for whom the motion has been filed against will only be allowed to have visitation under supervision–usually a visitation center or an agreed upon third party.

Penalties for Frivolous Motions

Motions to restrict are very hard to prove, not taken lightly by the court and are to be utilized only in extreme circumstances. They require strong evidence of physical or emotional risk to the children. If a motion is deemed frivolous or spiteful, the court shall order the filer to pay the other parent’s attorney fees and court costs and may sanction the filing party in any number of ways to prevent abuse of this tool.

Parenting plans are legally binding court orders in Colorado. Failure by one parent to follow the parenting time schedule can result in legal action.

When a parent violates the parenting time schedule — for example, by not picking up or dropping off the child on time — it can be frustrating and disruptive. Always try communication first. However, if that doesn’t resolve the issue, you might need to consider other options.

Call the Police

Police have the authority to enforce court orders, especially those with detailed parenting time orders. Sometimes police involvement can be traumatizing for the child but, it may be the quickest way to obtain a result.

File a Motion for Contempt 

Another way to enforce orders is to have your lawyer file a motion for contempt of court. Sanctions may include fines, counseling, makeup time, or even jail. The court decides based on the violation.  A contempt will take more time but it can have more severe sanctions for the offending party.

File a Motion Concerning Parenting Time or a Motion to Enforce 

This motion is quicker than a contempt and has fewer requirements than a motion for contempt.  That being said, the sanctions do not include jail time. However,  it can offer more flexibility and additional relief, such as makeup parenting time or parenting time modifications which may be what is in the best interest of the child.

Supervised parenting time is exactly what it sounds like: A parent can only have parenting time with their child while being monitored by a court-approved supervisor or agreed to supervisor.

Such an order can be issued during the initial APR (custody) hearing or when one parent requests parenting time (visitation) restrictions. Examples of situations that might call for supervised parenting time include:

• Serious mental health issues,
• Untreated substance abuse problems,
• A history of violence, especially the domestic kind, and
• Findings or a history of abuse or neglect.

The parties can agree to supervised parenting time, although unlikely, and therefore usually requires a court to issue an order after pleadings and hearing.

Yes.

Colorado courts understand that circumstances can change over time. Sometimes it’s necessary to modify the original schedule to ensure the child’s best interests are always being served.

The best route for this is to attempt to reach an agreement between the parents. If that does not work, a motion will need to be filed with the court to initiate proceedings.  This is a motion to modify parenting time.  Either parent can request a modification. Some common reasons to make such a request include:

• Relocation: One parent plans to move to a new location that significantly impacts the existing parenting time arrangement.
• Changes in Work Schedule or Availability: A parent’s availability changes so much that it could affect their ability to exercise parenting time as previously ordered.
• The Child’s Age or Needs: A child’s needs and preferences may change as they get older, requiring adjustments to the parenting time schedule.
• Safety Worries: Concerns about the child’s safety during parenting time with one parent could justify modification.
• Parental Cooperation: One or both parents seem unable or unwilling to follow the existing parenting time order.

These motions are not ruled on by motion alone.  The court will want the parties to mediate before they will set it for hearing to hear evidence on the modification.  This filing and hearing may also result in the appointment of a CFI or PRE to conduct an investigation and make recommendations to the Court for its consideration.

If one parent is moving far enough away that the current parenting schedule will not work, there will be a relocation order needed.

Colorado courts cannot prevent a parent from moving away from the other after divorce. However, the court can prevent the child from relocating with the parent if it is not found to be in the child’s best interest.  If the parties cannot agree on where the child will live if one parent moves, or what the parenting plan should look like, the party wishing to move needs to file a notice (pre-decree) or a motion to relocate (post-decree).

In the initial divorce, notice of relocation is required.  In post-decree matters, a motion will be needed.

During the Divorce/Parenting Proceedings 

Here, the court needs only to apply the best interests of the child standard when determining parenting time and responsibilities. It will consider the following:

• The parents’ and child’s preferences.
• The relationships of the child(ren) with parents and immediate family.
• How the child adjusts to home, school, and community.
• Mental and physical health of all individuals involved.
• Past patterns of parental involvement and mutual support.
• The physical distance between each parent’s home.
• Each parent’s ability to support the child’s relationship with the other parent.
• Each parent’s ability to prioritize the child’s needs.
• A history of child neglect or spouse abuse, if any.

These factors decide primary responsibilities, decision-making authority, and parenting time scheduling.

After a Parenting Time Plan is in Effect 

The request for relocation often comes after the parenting orders have been established.

To ascertain the child’s best interest in post-decree relocation, in addition to the factors above, the court also considers:

• The reasons for relocation
• The opposing parent’s objections
• Daycare and school quality at the new location
• The parent-child relationship history
• The projected impact on the child
• The feasibility of working out a new parenting schedule

Balancing Parenting Time

Relocation cases are not just hard on the children, but very hard on the parents. One parent usually loses significant time with their child due to the great distance and expense of travel and the other will have more parenting duties day to day.

It is never an easy decision for the court or families to make but whether the child goes with the relocating parent or stays with the other and often requires the investigation of a CFI or PRE to make recommendations to the court.

The most common schedule seen for holidays in Colorado is to alternate each major holiday every year.  Meaning, if one parent gets Thanksgiving, the other gets Christmas.  Then the parents will switch next year.

This can include as many or as few holidays and special occasions as the parents may want.  The more specific and the more details, the better off the parties will be in the long run so additional disagreements or litigation will not be needed. Consider if you want to include birthdays, long weekends, fall and spring breaks.

Generally, vacations are equally split between the parents. Each party will be given the same amount of vacation time and each will be required to notify the other parent of their intended vacation plan with itinerary well in advance to avoid double scheduling.

Holiday time takes priority over vacation time which takes priority over regular parenting time.

Fortunately, there are many approaches parents can take to address issues that might arise.

Absolutely. It is a violation of a court order when one parent refuses to return the child after parenting time, and this behavior can have serious consequences.

If this happens to you, try not to be too alarmed if this is the first incident. Other circumstances — such as a traffic accident, emergency, or sudden work commitment — could significantly delay the return of your child. This is still a problem, but it does not rise to the level of needing court or police intervention.

However, certain violations, especially when repeated, may require taking legal action. These could be:

• The other parent refuses to hand over the child at the scheduled time.
• He or she takes the child across state lines without consent.
• Your child has been influenced by the other parent to complain that the parenting arrangement is unfair. This is considered parental alienation.
• The other parent relocates without notice and avoids contact with you about returning the child.

Any of the above could amount to a violation of the court’s parenting orders, or even abduction or kidnapping.

In short, it is illegal for anyone — even a parent — to remove a child from the care of the other parent without court order.

It is possible for grandparents or other relatives to obtain visitation rights in Colorado. It is also possible for a non-parent to obtain APR over a child.

Generally, if the grandchild’s parent is considered fit, courts defer to the parent. This follows a 2000 United States Supreme Court decision in Troxell v. Granville. The court held that states permitting grandparent visitation against parents’ wishes violated parental rights.

In other words, state courts must give “special weight” to parent’s wishes when grandparents seek more visitation than permitted.

However, grandparents or other relatives may petition for visitation rights under certain circumstances. In Colorado, these are:

• Divorce or Separation: When the parents’ marriage is dissolved or declared invalid, or there’s a legal separation.
• Grandchild in Foster Home: If a child’s custody is given to someone other than the parent, excluding adoptions.
• Death of a Parent: If the parent — the child of the grandparent or great-grandparent — has died.

The court still at least presumes preference in favor of the parent(s) in these matters. Therefore, grandparents must challenge that presumption by showing:

• That the limits placed on grandparent visitation by the parent are not in the child’s best interests, and
• The visitation sought by the grandparent(s) will be in the child’s best interests.

Grandparents must present clear and convincing evidence of each of those two points. This is a high standard.

There is much more to learn about grandparents rights to visitation and even custody, but this answer brushes upon the key issues.

Short answer? Definitely maybe.

Colorado sets no specific age for when a child can choose which parent to spend more time with. As set out in the applicable code, the court will weigh the child’s maturity in expressing preferences.

The older the child, the more their opinion matters. But it’s not just about age; if they can express well-reasoned thoughts, that’s what counts.

For example: a scared six-year-old could have a say due to tough situations. On the other hand, a 16-year-old’s preference might not matter as much if their reasoning seems selfish or unclear.

There are two questions being asked here. I’ll tackle them one at a time:

What Happens When a Parent Goes to Jail? 

A person forfeits most of their civil rights while they’re in jail. However, they do not necessarily lose their right to be a parent.

Obviously, the incarcerated parent cannot exercise their parenting time so a modification or restriction may be needed to get orders to better address the situation of the family and the best interests of the children while a parent is incarcerated.

Worst Case Scenario 

In some cases, incarcerated individuals may lose parental rights to their child(ren). This is an action that would be brought by the state or in another adoption type proceeding.

What Happens When a Parent Becomes Incapacitated? 

If a parent is incapacitated by serious injury or illness they may not be able to care for his or her child until their condition improves. This presents obvious challenges to any parenting time arrangement.

A Court will need to modify the parenting time arrangement to serve the best interests of the child.  Additionally, the issues of whether a parent’s guardian, if legally appointed, can exercise the incapacitated parenting time will need court determination. As always, the child’s best interest must be considered.

Child support is going to be addressed in all parenting orders.

Child support primarily depends on amounts of overnights a child has with a parent and the parents gross income. Other factors that will be considered in the calculations are expenses such as health insurance and childcare costs(Hyperlink 16)

Even if parenting time is equal, a significant difference in income can still result in a child support obligation.

A person’s parenting time cannot be withheld for failure to pay child support.  However, the failure to support a child may be considered in other circumstances such as adoption.

If the other parent is violating court orders, there are legal remedies to deal with that. This includes non-payment of child support.  A parent should never withhold a child for failure to receive child support.

A parenting plan outlines how parents who do not live as a family will share parenting time and decision-making for their child or children.

Parents should try and agree to the plan and submit it to the court for approval.  If the parties cannot agree on a plan, the court will create one for them. In every case, courts will apply the best interests of the child or children standard, considering:

• The parents’ and child’s preferences.
• The relationships of the child(ren) with parents and immediate family.
• How the child adjusts to home, school, and community.
• Mental and physical health of all individuals involved.
• Past patterns of parental involvement and mutual support.
• The physical distance between where each parent lives.
• Each parent’s ability to support the child’s relationship with the other parent.
• Each parent’s ability to prioritize the child’s needs.
• A history of child neglect or spouse abuse, if any.

Implementing the Plan 

Once the court determines the best interests of the child for parenting time and decision-making it is a court order and must be followed. While it’s impossible for a parenting plan to anticipate every situation, it should cover the most likely and important ones.

Modifications can be easy if both parents agree. If they don’t agree, the parent requesting modification must show changed circumstances to justify the change, file the necessary motion for modification with the court and the court will have to decide.

This can be very tricky. The long and the short is court orders must be followed.

Children do not get to decide whether they participate in the court-ordered parenting time. If there is an order in place, then each parent needs to encourage the child to engage with the other parent during their time. If a child is refusing, a parent must seek a modification from the court. A parent cannot allow the child to make the decision.

In this circumstance, a CFI or PRE should be appointed to sort out what the child’s wishes are to present them to the court.  Remember, the child’s wishes are merely a factor for the court to consider on parenting orders and not the ultimate authority.

Absolutely not.

If a party is not paying child support, you should not withhold a child. You must seek court assistance, usually via a contempt motion.

In Colorado, when couples have children outside of marriage, there is no automatic legal recognition of the father. Either parent must take steps to establish paternity through a petition for paternity.

There are three ways to do that:

1. Voluntary Acknowledgment:The easiest way is to complete a Voluntary Acknowledgment of Paternity (AOP) form. Both parents must sign it, affirming that the man is the biological father. The form can be signed at the hospital, birthing facility, or the Office of Vital Records and Statistics. Once filed, the AOP establishes legal fatherhood and adds the man’s name to the birth certificate. After 60 days, neither parent can revoke the AOP without court action.
2. Administrative Paternity Order:An administrative order establishes paternity without court involvement. It is usually issued when one parent applies for child support through the state. The state holds a proceeding to determine paternity, allowing both parents to respond and provide additional information. Once all matters are resolved, an administrative order of paternity is issued.
3. Judicial Paternity Order:A judicial paternity order is issued through a court action, usually initiated by a paternity suit. Both the mother and potential father (or fathers) present information during a hearing, and the judge makes a ruling to establish paternity.

Once paternity is established, either parent can then ask the court to establish parenting orders through a parental responsibilities case, APR, filing.  Having paternity established does not automatically create a parenting order and further court action is required.

Family situations involving military personnel can be challenging due to deployments and training.

Generally, each parent is entitled to reasonable parenting time, unless it could endanger the child’s physical or emotional well-being. When appropriating a parenting time schedule, the court must consider all the best interest factors, just as they do in establishing parenting orders for non-military families. (Hyperlink 13)  Additionally, the Court will consider other factors that impact military families such as the Uniform Deployed Parents Custody and Visitation Act (UDPCVA).

The UDPCVA applies when one of the parents gets deployed for active service. It includes crucial rules for military members, covering:

• deployment,
• military custodians,
• visitation rights,
• returning from absence,
• electronic testimony, and
• expedited hearings.

These statutes apply to each unique set of military parents trying to share parenting time after a divorce or separation. How they affect parenting time depends on a number of factors unique to the parents and children.There are many other nuances that make military divorce matters more complex. It’s important to hire an attorney who is familiar with the state/federal statutes related to your case to protect your rights.