How Do They Determine Who Gets Custody?

May 26, 2021

What Can I Expect in a Child Custody Determination?

Divorce can be one of the most challenging and stressful experiences of a person’s life, and one of the most difficult aspects of any divorce is child custody determination. If you and your spouse have children and decide to divorce, one of the most critical aspects of your divorce proceedings will be deciding custody rights over your children. At the Johnson Law Group, we understand how emotionally stressful child custody determination can be for divorcing parents and want to provide you with as much information as possible about this process so you can approach your divorce with greater confidence.

Can My Spouse and I Decide Child Custody Ourselves?

No one knows your children and your family dynamics better than you, but unfortunately, you cannot avoid Colorado state law when it comes to your divorce. While it is possible to privately negotiate some aspects of your divorce, a family court judge must rule on child custody to ensure the custody terms you and your spouse reach suit the best interests of your children.

Many divorcing couples throughout the US choose divorce mediation to have more control over the outcomes of their divorce cases. Mediation offers divorcing spouses the chance to privately negotiate the terms of their divorces in a low-pressure atmosphere under the supervision of a neutral mediator. This allows the couple to privately negotiate property division, alimony, and many other aspects of their divorce, typically resulting in a more agreeable and personalized result than what a judge’s ruling would entail. The divorcing couple cannot, however, reach any firm resolution on child custody.

Couples who decide to mediate their divorces may negotiate parenting plans and offer a proposal for an Allocation of Parenting Time and Parental Rights, but a Colorado family court judge must review and approve this proposal before it carries any legal weight. It is still worth pursuing divorce mediation, so you and your spouse can have some measure of control over the outcome of your custody agreement, but remember that the judge reviewing your proposed parenting plan will likely make some adjustments to ensure it aligns with state law and the judge’s interpretation of the best interests of your children.

What Will a Judge Consider in Custody Determination?

When a judge must rule on child custody, how do they determine who gets custody? Whether a judge must review a mediated parenting plan or rule on child custody in divorce litigation, Colorado state law requires the judge to rule in favor of preserving the best interests of the divorcing couple’s children. This may sound vague, and ultimately every judge will have unique perspectives on what constitutes the best interests of a child, but state law requires a family court judge to assess several factors in determining child custody, including:

  • The income of both spouses. Divorcing parents are expected to contribute equally to financially supporting their kids. A family court judge will want to assess each parent’s income to help them determine the most appropriate custody arrangements and each parent’s child support obligations.
  • The age and overall health of the parents. If one parent is physically more able to provide a safe and nurturing environment for their children than the other, this will increase the chances of that spouse obtaining greater custody rights than the other.
  • The children’s relationships with their parents. A family court judge will usually be willing to hear from the divorcing spouses’ children and learn about their preferences if they are old enough to make coherent statements about the issue.
  • The parents’ histories of domestic violence and child abuse. If either parent has a history of domestic violence or child abuse of any kind, this will significantly sway the judge in favor of awarding custody to the other parent.
  • The parents’ respective living arrangements. When parents divorce and live separately, one will typically remain in the marital home while the other moves into their own home. Judges tend to rule in favor of disrupting children’s lives as minimally as possible. The judge will likely rule in favor of allowing the primary custodian of the couple’s children to remain in the marital home or awarding the marital home in property division proceedings to the parent who obtains majority custody rights.
  • Each parent’s contributions toward raising their children. If one parent was primarily responsible for feeding, clothing, and supervising the couple’s children regularly, this parent is more likely to obtain greater custody rights.

Every divorce case is unique, and ultimately a family court judge must assess many different factors when determining the best possible child custody terms for divorcing parents. If you are preparing for divorce in the near future and have concerns about custody determination, it is vital to understand the difference between legal custody and physical custody, as well as the criteria a judge will evaluate when awarding these two types of custody.

It is also important to remember that most Colorado family court judges will sway in favor of maintaining the child’s status quo when they must rule on child custody. This means that the judge is most likely to rule in favor of whatever custody arrangement poses the least amount of disruption to the child’s everyday life.

Physical Vs. Legal Custody

“Physical custody” refers to where children will spend their time under the terms of a custody arrangement. For example, if the children spend weekdays with one parent and weekends with the other, the former will have a larger share of physical custody rights than the latter. “Legal custody” refers to the authority to make significant decisions on a child’s behalf. Most divorcing parents will aim for 50/50 legal custody, meaning that even though the parents are no longer married, they must still consult one another and reach agreements regarding significant decisions concerning their children.

Most custody arrangements today involve an uneven mix of physical and legal custody. Divorced parents may have different work schedules. A family court judge may award joint legal custody but award more physical custody to one parent over the other due to their regular availability.

If you plan to move out of the family home following your divorce, you should understand that establishing a new stable living situation will be crucial if you intend to fight for physical custody. For example, if you are staying in a friend’s guest room after your divorce, you cannot provide your children with their own space in a stable environment. While it is never a good idea to move out of the family home until your divorce is finalized, you should be sure to have firm arrangements in place for a stable environment. Living close to your ex will make it easier for a judge to rule in favor of a more equivalent time-sharing custody order between you and your co-parent.

Custody and Child Support

Unless divorced parents obtain completely even 50/50 joint custody and make the same amount of income, one parent will pay child support to the other. Colorado state law upholds that both child’s parents must contribute equally to financially supporting the child, even when divorced parents share custody. However, the amount of support a paying parent must remit to the receiving parent will reflect the paying parent’s custody rights.

For example, one parent receives 50/50 legal custody, but their children spend 80% of their time with their other parent. In this situation, the parent with less physical custody will pay much more in child support than they would if the children spent 50% of their time with them. This reflects that the other parent has the children more often and is therefore responsible for more basic living expenses.

Can I Change My Custody Agreement?

Colorado family law provides a modification system that allows divorced parents to petition for changes to their child support and child custody orders under certain conditions. If you believe that your current child custody agreement is unfair or does not suit your child’s best interests, you can work with a Colorado family law attorney to file a petition for modification of your custody order. You may also want to file a petition for modification if something happens that interferes with your ability to exercise your parental rights under your custody agreement or if you experience a financial change that disrupts your ability to pay child support.

If you intend to file a petition for modification of your custody agreement, you must be able to prove that some life event has occurred that has rendered your original custody terms unfair or untenable. If you believe your co-parent poses any kind of danger to your children or has harmed them in any way, your attorney can assist you with filing contempt proceedings against them and may help you secure protective orders that will prevent your ex from engaging in any further abusive behavior.

It is also possible to change a custody order if one parent is willing to relinquish their parental rights. This would grant full custody to the other parent and not terminate the relinquishing parent’s child support obligation unless the parent with full custody remarries a stepparent who is willing to adopt. Cases involving termination of parental rights, whether voluntary or involuntary and cases involving adoption are usually complex matters that require the attention of an experienced family law attorney.

Can I Obtain Full Custody If My Co-parent Moves Away?

Relocation is a sensitive issue for many divorced parents. For the relocating parent, moving can offer the opportunity for a better job and a better place to raise their children. For the non-relocating parent, the situation can feel as though their ex is trying to steal their kids from them. Ultimately, if parents have a custody agreement and one of them intends to move, their custody agreement will need to change one way or the other. If the non-relocating parent can prove that the move does not suit their child’s best interests, they may prevent the other parent from moving unless that parent is willing to relinquish some measure of their custody rights. If the relocating parent intends to take their children with them, they must be able to prove that their planned relocation would suit their children’s best interests better than their current custody agreement. However, a family court judge may be unwilling to approve of their relocation if it would prevent the other parent from reasonably exercising their custody rights.

Do I Really Need an Attorney for a Child Custody Determination?

Colorado has no legal requirement that a divorcing parent must hire an attorney to represent them in their divorce proceedings. However, if you choose to forego legal counsel during your child custody determination, it puts you at an inherent disadvantage, especially if your spouse has retained legal counsel of their own. Hiring an attorney can help you remain focused and objective about the situation. Your legal team is more likely to secure a favorable custody determination than you could manage independently.

Making a case for custody will typically require financial record disclosure and a compelling statement that makes your viability as a custodial parent as clear as possible for the judge overseeing your case. Your attorneys can help you address the unique variables concerning your family dynamics that are likely to arise during child custody determination proceedings. Ultimately, hiring an attorney to represent you in a child custody case greatly increases your chances of securing the custody arrangement you hope to obtain.

The attorneys at the Johnson Law Group have years of experience assisting Colorado clients through their divorce proceedings. We understand how emotional this process can be and that your custody determination will influence your life for many years to come. Our goal is to provide client-focused, compassionate, and responsive legal counsel throughout your divorce proceedings, including your child custody determination.

If you have any concerns about how your child custody case is likely to unfold, it is best to consult an experienced family law attorney as soon as possible. When you are ready to speak with a reliable child custody attorney about your case, contact the Johnson Law Group and schedule a case evaluation with our team.

Written by Family Law Attorney Myles S. Johnson
Divorce doesn’t have to be dramatic. For the litigants, losing your spouse is significant enough. But you can choose the way it affects your daily life. The only guarantee I can give is that the feeling that you have right now will not be the feeling you end with. This is a season in your life, and it must be approached that way.
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