child’s medical and school records. Residential Custody designates who the child will be living with most of the time. Even if there is a 50/50 split, a person needs to be designated for purposes of school residence qualifications, assistance, etc. The Court will look at whose home environment and parenting ability is in the best interests of this particular child. Parenting time, formerly known as visitation, is determined to schedule how often and when the non-custodial parental will see the child. Holiday exceptions are also handled in these cases so that there is no problem when these occasions arise. Day to day decisions regarding a child’s health and welfare are generally left up to the parent who is spending time with that child when the decision needs to be made. This includes meal choices, television/computer/phone privileges, extra-curricular activities that don’t interfere with the other party’s parenting time, bedtime, etc. Child Support will also be established. Colorado uses a formula based on the parties’ gross income, other maintenance and child support obligations, and the child’s expenses, such as health insurance, day care, etc. These numbers are plugged into a formula, which can be found in the self-help center of the Colorado State Judicial Branch’s website. Paternity cases decide all of these things, but are initiated in cases where paternity has not yet been established. This means that there is no father listed on the birth certificate of the child, or there is another person claiming paternity than the person listed on the birth certificate of the child. All of the same things that are addressed in Parental Responsibilities actions will be addressed in Paternity cases. These terms are often used interchangeably.
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- Divorce: Termination of Marriage due to irretrievable Breakdown
- Annulment: Nullification of a Marriage due to Fraud, Incapacitation, Inability to fulfill marital obligations.
- Legal Separation: Division of Assets & Liabilities, Resolution of Child Related Matters without a formal divorce decree
When you know for sure that your marital relationship is over, it is time to file for divorce. The only thing that a person is required to show in order to obtain a divorce in Colorado is that at least one person believes that the marriage is irretrievably broken, for whatever reason. Colorado is a no-fault state, which means that the Court will enter a decree of dissolution without requiring proof of a party being in the wrong through infidelity or abuse. Some people, either for personal or religious reasons, may opt for a legal separation. This option will divide the assets and liabilities of the parties and resolve child related matters without the entrance of a formal divorce decree. Lastly, a final option, not often used, is annulment. This option requires proof that the person filing entered into a marriage under false pretenses (fraud), while they were incapacitated (intoxicated or mentally ill), or either party is unable to fulfill his marital obligations (generally used when one party fails to consummate the marriage sexually). The Court requires proof of these allegations, and annulments can be difficult to obtain in most circumstances.
Once your divorce, separation or annulment is finalized, there will be final orders entered for the parties to follow regarding the children and family support. Often the parties’ situations change or the children’s needs change in such a way that makes the existing orders ineffective or unreasonable. A Motion to Modify Parental Decision Making, Custody or Parenting Time would be appropriate if the current arrangement is not in the children’s best interests. If you wish to change the primary residence of the child, it must be proven that the child’s current arrangement is endangering their health and welfare. If there is a 30% change in the parties’ financial circumstances, the Court will entertain a modification of child support or maintenance (spousal support). The Court will also look at a person’s personal situation to determine if there is a hardship to them if the current maintenance order remains in place.
Child Support and/or Spousal Maintenance
What do I do if the other party does not comply with the Court’s orders? The best tool a party has to see that orders are enforced is the Contempt Citation. This is a civil motion that is punishable by up to six months in jail. A moving party is entitled to have any arrears that have built up due to unpaid child support or maintenance within two (2) years of the Contempt, plus reasonable interest, usually set at 12%. Creditors are not bound by a divorce decree or order. Your spouse’s failure to pay the bills as ordered and/or refinance his share of marital property can start to affect your credit. If you are listed on these bills as a co-debtor or co-signer, creditors will look to you to pay what your spouse has not. Therefore, the sooner you file a Contempt citation, the better!
Determining who has Decision Making Authority
Day-to-Day and Health/Welfare Decisions regarding the children
Determining Parenting Time - the Best interest Standard
- Residential Custody - where will the children live?
- Visitation - when will the children see the non-residential parent
- Holidays - how will the holidays be divided among the parents?
Establishing Child Support and other child related issues
- College Education Expenses
- Modification – Change in Circumstances Standard
Allocation of Parental Responsibilities cases determine who has decision making authority with a child born outside of wedlock. This authority covers the major decisions regarding the child, such as medical decisions, mental health treatment, school decisions, religious upbringing and education, etc. Colorado law protects both parents with regard to obtaining medical information or school information, in that both parties, absent court order prohibiting it, have equal right to a
As with final orders in a divorce, parental decision making and paternity orders can also be modified. The Endangerment standard is used to determine if a change in residential custody is warranted. This means that the party requesting the change must prove that the child’s emotional and/or physical welfare is in danger if they are left in their current situation. Parenting Time can be modified to better reflect a parent or child’s change in circumstances and the Court will look at what is in the child’s best interests when making those modifications. If the parties have a change in financial circumstances which change the child support by more than 30%, the can move to modify the child support order. Colorado has recently changed its law regarding children subsequently born to the parties; both parties will now get credit for children born after the order was entered.
- Relinquishment/Termination of Parental Rights
- Open Adoptions - the Gentleman’s Agreement
- Step-parent Adoptions – with consent or through abandonment
Adoption is appropriate when the parents are no longer in the picture. Adoptions require that both parent’s rights be terminated in order for the child to be “freed” for adoption. Termination of parental rights requires clear and convincing evidence that the parents have abandoned or are otherwise unfit to parent the child and the situation is unlikely to change within a reasonable time. Any agreements made between the adopting parents and the biological parents regarding future contact or letters/photos being exchanged ARE NOT enforceable by the Court. These are considered “gentleman’s agreements”, in that they keep honest people honest and that’s it. Once parental rights are terminated, the biological parents have no recourse to enforce their rights to custody, parenting time or decision making authority with regard to their child. Occasionally when a step-parent has become involved, a biological parent may have abandoned their child, as defined by no contact or support being provided for a period of over one year. In this case, or in cases where a biological parent consents to the termination of parental rights, the Court will allow a step-parent to adopt a child that they have developed a parental relationship with. Adoptive parents are afforded the same rights and obligations that biological parents have, including rights to inherit and the obligation to pay child support if they no longer reside with the child. The child’s birth certificate is amended listing that person or persons as the parents of the child, and the child holds all rights as a child born of that person or persons adopting her.
Allocation of Parental Responsibilities
Post Decree Matters
- Modification of Parenting Time/Parental Decision Making/Custody
- Modification of Child Support - Change in Circumstances Standard
- Modification of Maintenance - Change in Circumstances and Hardship Standards
- Contempt citations for failure to comply with Court orders
A. What to do when the other party doesn't pay support or maintenance as court ordered?
B. What to do when the other party doesn't turn over your share of the marital property?
C. What happens when the other party's failure to pay his bills and/or refinance his share of marital property starts affecting your credit?
Dependency & Neglect Proceedings – when children are abused, neglected or out of control
- Prosecution – what to do if you suspect your children are being abused.
- Defense – How to proceed when DHS has become involved with you and your family
- Prosecution – what to do if you have been threatened or fear for your safety?
- Defense – what to do if you have been falsely accused and/or your feel the other party is abusing the system