Blog

The period before the official dissolution of a marriage can be contentious for divorcing parents at odds with one another. If you are concerned about child custody and parenting decisions during the divorce process, you are not alone. An experienced Colorado divorce lawyer at Colorado Divorce Law Group can help you establish custodial boundaries and restrictions to protect yourself and your children during divorce. Call us today at (720) 593-6442 to learn more about your legal options.

Understanding Custody Terms, Rights, and Obligations

The term “custody” commonly refers to a few different aspects of the guardianship of minor children. The Children’s Code of the State of Colorado uses the terms parenting time and decision-making in lieu of physical and legal custody, respectively. Colorado uses these terms to distinguish between the two basic forms of custody:

• Parenting Time (in some states called physical custody) is the right to have a child live with a parent. Physical custody includes providing day-to-day childcare and determining where the child will primarily live. A custodial parent is one with full or sole physical custody, meaning the child lives with them, and the other parent has visitation rights.

• Decision-making (in some states called legal custody) refers to the obligation and right of a parent to make decisions regarding their child’s upbringing. For legal purposes, such decisions may include determining where the child goes to school, seeking and applying various forms of medical care, and choosing the religion (if any) in which the child will be raised. Depending on the state, legal custody may sometimes be defined in terms of sole or joint participation; in Colorado, the most common arrangement is for former partners to share decision-making responsibilities unless one parent is incapacitated or otherwise deemed unfit to make decisions in the child’s best interest.

Arranging for Custody During Divorce Proceedings

After a divorce between partners who have children, the court’s decree will often include a ruling establishing which parent will have physical and legal custody as well as whether both will maintain joint legal custody. Until such time as the divorce is finalized, both parents typically maintain legal custody over any children and may have equal rights for parenting time, even if they live apart. Determining where the child will live until the final court ruling can often be contentious, and many families need a formal custody arrangement in place while their case proceeds. If you need legal representation and assistance in establishing your custody rights during divorce, you may wish to consult with an experienced family law attorney. The legal team at Colorado Divorce Law Group can review your case and help you evaluate your options.

Although each divorce situation is different, there are generally a few options that you and your spouse have in arranging custody for the period between filing for divorce and receiving the court’s final divorce decree.

Points to Consider in Establishing a Custody Arrangement

When structuring a custody arrangement during a divorce, parents may wish to consider the following:

• Which parent’s home is closest to the relevant schools?
• Which parent is able to spend the most time with the children?
• Which parent is most available to take the children to various activities or to see their friends?
• Does the child, or do the children, have a preference?
• Is either parent’s residence unsafe or not conducive to housing children?

Filing a Temporary Arrangement

In an amicable divorce, the spouses can often agree on basic principles and discuss aspects of their situation agreeably to find a solution that works for both of the divorcing partners as well as any children who may be involved. In these cases, both parents may agree that one parent’s home would be the best environment for the children, whether it means the children remain in their current home or that they move in with a parent who has established another residence.

If you and your spouse are able to agree on a temporary arrangement, you may file it with your other divorce documents. If both parties are in agreement that the temporary arrangement they have filed will also be acceptable as a long-term solution, in many cases the temporary order submitted by the divorcing partners will become the permanent order once the divorce is finalized.

Petitioning the Court for a Temporary Custody Order

In more contentious divorces, the parents may not be able to agree on an arrangement for temporary custody of the children. If one parent has serious concerns about their child’s safety, or if both parents are determined to maintain what they consider to be primary custody throughout the divorce process, then asking the court to grant a temporary custody order as defined by the State of Colorado’s Revised Statutes may be the best option. In this case, the parent who wishes to request the temporary custody arrangement, or an attorney acting on their behalf, will need to file a Request for Order, petitioning the court to grant a temporary custody order lasting for the duration of the divorce proceedings. This kind of temporary order may be replaced by the permanent order established by the court in the final decree of divorce. The Request for Order should include:

• An explanation of the type of order you wish the court to decree
• Request of the specific type of custody (joint or sole; parenting time or decision-making)
• Evidence and a declaration that supports the request (often framed in terms of the best interests of the child or the child’s safety)

The other party will have an opportunity to formally respond to your petition and is entitled to make a declaration of their own. A judge will then decide if your case will go to mediation or court.

What to Expect from Custody Mediation

Mediation is a negotiation between two interested parties (divorcing parents in this case) guided by a neutral third party, a trained mediator. The mediator will speak with each party separately, although either party may be accompanied by their attorney. Over a series of discussions, the mediator will aim to move both parties into a mutually acceptable compromise. The goal of mediation is often to establish a temporary custody arrangement that both parents can accept and agree to uphold until the court outlines long-term custody arrangements in its decree of divorce. If a divorcing partner is working with an attorney to secure their custody rights during divorce, the lawyer may attend mediation with that parent or on their behalf and represent their client’s interests in mediation as well as in court.

What to Expect from a Temporary Custody Court Hearing

If the divorcing partners cannot agree to mediation, they may be scheduled for a hearing before a judge. At this point, the judge will typically seek to find an arrangement that serves the best interests of the child or children involved and issue a temporary court order formalizing the arrangement that will be legally binding on all parties.

Colorado Laws Regarding Child Custody During a Divorce

In Colorado, judges typically attempt to establish a custody arrangement that ensures any children of the marriage will have frequent contact with both parents during and after a divorce, with the operating assumption being that in most cases it is to a child’s advantage to maintain a relationship with both parents.

During the period between a divorce’s filing and its final decree, each parent’s rights for parenting time and decision-making responsibilities over their child are determined by the temporary custody arrangement. If, in crafting its decree, the court determines that one parent does not have primary parenting time or decision-making authority, then that parent will no longer have these rights over their child. However, the Colorado Court of Appeals has established a process that in some cases provides for a parent who has lost custody rights, whether for parenting time or for decision-making, to challenge the custody arrangement established by the presiding judge in the original decree of divorce.

Get Help Negotiating Custody Rights During Your Divorce

Negotiating custody arrangements with a person you are divorcing can be an emotionally fraught and challenging experience. The expert divorce attorneys at Colorado Divorce Law Group represent clients in difficult and contentious divorces, putting our client’s interests and those of their children first. If you are faced with the difficult task of navigating custody rights during divorce, consider calling our office today at (720) 593-6442 to schedule your free and confidential consultation.