Denver Child Custody Attorney
“Child custody” is an outdated term that concerns two distinct concepts, parenting time and decision-making authority.
Parenting Time (Physical Custody, Visitation)
Parenting time, formerly known as physical custody or visitation, really concerns where the child lives. Parenting time is usually shared, such as when the child essentially lives with one parent but visits with the other parent every other weekend. The parent with whom the child lives a majority of the time is sometimes said to be the custodial parent. The other parent is the non-custodial parent.
In decades past, under the “tender years doctrine,” courts automatically presumed that young children were best cared for if their mother had primary physical custody. Today, the court is legally prohibited from making that presumption as is required to consider only the best interests of the child. However, whether the courts truly apply this gender-neutral standard is debatable, especially when very young children are involved.
Decision-Making Responsibility (Legal Custody)
Decision-making responsibility, formerly known as legal custody, is the power to make major decisions on behalf of the child. “Major” issues include health care (whether and what type of treatment the child receives), schooling (whether the child attends public, private or home school and whether he or she received tutoring), religious training and attendance at religious functions, orthodontic care, and mental health care. A parent with “sole custody,” that is, sole decision-making responsibility, has free reign over all major decisions relating to the child unless the child’s physical health or emotional development might be significantly impaired.
Disputes sometimes arise about whether an issue is “major” and, therefore, must be decided by the parent with legal custody or whether the issue is minor and can be decided by the other parent. Examples of this grey area include whether the child should participate in extracurricular activities, such as sports, drama or music, whether the child may begin driving or dating, and limitations relating to personal grooming such as haircuts, body piercing, tattoos, or makeup.
Modification of Parenting Time and Decision-Making Responsibility
A court will consider modifying the terms of parenting time or decision-making responsibility at any time, if such modification would serve the best interests of the child. However, if the request to modify would change an existing order as to which parent the child primarily resides, the court will only consider such motion every two years unless the child’s physical health or emotional development are at risk or if the other parent intends to relocate the child to a far-away location.
Modification of parenting time is based on the factors set forth on our “Parenting Time” page.
Decision-making responsibility may be shared by both parents equally, may be allocated to one parent according to the specific issue, or may be held solely by one parent according to the “best interests of the child.” This analysis may involve an examination of more than a dozen factors including the following: (i) the ability of the parties to cooperate and to make decisions jointly; (ii) the relative degree of involvement by each parent in the child’s life, (iii) whether joint decision-making responsibility will promote contact between the child and each parent; (iv) whether there is credible evidence of past spousal or child abuse. If there is past spousal abuse, the court cannot legally award joint decision-making responsibility over the objection of the abused party.
Based on the discretionary nature of the Court’s analysis as well as the large number of variables involved, it is highly recommended that any party seeking to establish or change an existing child custody order or agreement hire an attorney who specializes in child custody issues.
Call us today for a free evaluation of your child custody issue. There is no obligation.