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How Custody Is Determined In Divorce Cases

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Hi, my name is Danielle Davis. I’m a Partner of Burnham Law. I’m here to talk to you today about how custody is determined and what factors the court considers in making that decision.

The first thing to understand is that in Colorado we don’t use the term “custody.” We use the term “allocation of parental responsibilities.” Allocation of parental responsibilities or APR is meant to determine three things – parenting time, decision making, and child support.

When we’re talking about the factors the court considers in making a decision about those issues, those are really going to be based on the best interests of the child. That is not a lay term. The court does not go with their guts when they make that decision. They actually consider specific factors, nine of them that have been laid out in the law under 1410.124.

The first of these factors is the wishes of the parents. This is your baseline. It’s what you’re asking the court to do.

The next is the wishes of the child. This is if the child is of sufficient maturity to express a reasoned and independent opinion. It is as important because many people come into my office and say, “Well, my child wants to live with me,” and I say, “Well, how old is your child? How mature are they? How are we going to get that opinion to a judge?” Children very rarely have the opportunity to speak to the court directly. And this means that you usually need to have an expert. The are other videos that talk about the type of experts available in domestic relations cases, but that’s how you’re going to get the opinion in front of the court.

The other factors, there are a few that are very fact specific. These are the opportunity for you to present this information to a judge based on your experience and what’s going on on the ground in your case. The first is the interaction and relationship of the child with the parents, siblings, and any other significant figures in the case. A lot of times, this includes aunts, uncles, grandparents, other people who live in the home.

The next factor is the child’s adjustment to their home, school, and community. This is particularly important if there’s a plan or a proposal from one of the parents to change the home, school, or community of the child in the outcome of the case.

The next is the mental and physical health of all parties involved, both the parents and the children, except that disability alone is not the basis to restrict or deny someone parenting time.

The last there is the past pattern of involvement of the parties and how that reflects a system of values, time commitment, and mutual support. Again, this is very fact specific to your case and what’s happened in the time leading up to your court proceeding.

The next one is the physical proximity of the parties and the practical considerations that that entails. This is important when you have parents who live a couple of hours or more apart or a two-state parenting plan. That, obviously, is going to come into play when making a decision about parenting time for where your child goes to school and who they live with most of the time.

The last two factors are the ones that in my experience are the most important to the judge and to the court. The first is the ability of a party to encourage the sharing of love, affection, and contact between the child and the other parent. What this means is that if you’re restricting your child’s access to their other parent, you need to have a very good reason or else you are creating very bad evidence for yourself and you are likely to be on the receiving end of an argument that you’re committing alienation.

The other one, and the last one, is the ability of a party to place the needs of the child ahead of their own. In my experience and my opinion, this is absolutely the most important factor in front of the court, and this is particularly in focus during the course of the proceeding in front of the court because parties are often in high conflict and there’s high emotion. If you have the ability to set aside your emotion and communicate clearly and in a child-focused way with your partner, you will have demonstrated evidence that you can place the needs of your child ahead of your own emotions and ahead of your own needs. This works in the opposite direction if you have evidence of someone sending inflammatory emails or messages or just talking about everything except what the child needs. That’s bad evidence. So, don’t create it for yourself and keep it if you receive it from the other side.

Again, there are other factors that the court would consider if there are other more specific issues being addressed like decision making, but these are the nine factors that the court must consider in making a decision about the allocation of parental responsibilities in your case.

I hope that this helps, and if you need more information, please feel free to go to our website,

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Managing Partner

Colorado Springs

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