Best Interests of the Child Standard

In Colorado, the only criteria that the Court will use to determine parenting time, absent an agreement of the parties, is a statute called "The Best Interests of the Child." Specifically, this can be found in Colorado Revised Statutes 14-10-124.

This statute sets the standard for Courts to settle parenting time disputes by utilizing ten guidelines listed below as a baseline. The Court will go through each of them one by one and make determinations based on their investigation of the same.

So what are the ten standards that the Court is looking for?

I'm glad you asked.

1. Wishes of the Child

This exact criterion is the crux of a lot of folks' misunderstanding of how parenting time (previously referred to as "custody") is allocated. Many people believe that the Court simply asks a child which parent they prefer to live with and go with that. This is not the case.

First, this statute continues to specify that the child's wishes are considered and inquired upon only when the child is of sufficient age and maturity to express them. My experience with this in the last decade and a half is that the age most relied upon to meet this standard is around fourteen years old or older.

The reasoning for the expansion of this criterion is largely not to put young children in the middle of conflict. If any child of any age and/or any maturity could simply decide for themselves what parenting time schedule they most prefer, family law cases would be fraught with conflict for the child. There would be a greater possibility of parents trying to persuade the child that living with them is better; create a "funner" environment so that the child prefers one parent over the other; and more or less putting the child in the middle as a decision-maker. This does not serve their best interests.

2. Wishes of the Parents

The wishes of each party will be heard by the Court in a contested hearing and both are given consideration. There is no longer an antiquated expectation that the child will go with Mother without question.

3. Child's relationship with their parents and siblings

Ultimately, Courts like to keep siblings with the same parenting time schedule. However, this is not always best for all the children involved. For example, if there is a newborn who is breastfeeding and they have a sibling that is school age, those children will not have the same needs.

Additionally, blended families are quite common in family law matters. As such, the Court will also consider the child's relationship to their step-siblings as well.

Finally, sometimes a child has a more bonded relationship with one parent over the other. This doesn't mean that the other parent is necessarily "bad," but rather there may have been circumstances that prohibited closer contact. Examples might be a parent that is in the military, is incarcerated, travels for work, or has significant medical needs.

4. Domestic Violence

While Colorado is a no-fault state for divorces and legal separations, the Court will take any allegations and/or convictions of domestic violence into account when determining the best interests of the child. This is particularly true if the victim was the child. When making determinations for parenting time when domestic violence is at issue, the Court may impose additional provisions to that parent's parenting time such as supervised parenting time; restriction of overnight parenting time; drug and/or alcohol monitoring; domestic violence evaluations; No Contact Orders between the parties; exchange locations in a safe and public setting (often a police station); confidential addresses for the other parent; child support payments through a registry rather than directly to the other party; and any other provisions to keep the child protected.

5. Child's relationship with their school, community and home

If the child's school is down the block at one parent's house and seven miles away from the other parent's house, it might be beneficial for the child to live with the parent closer to the school. If one parent is intensely involved in a child's horse-riding competitions and the other parent does not support it, it might be in the best interests of the child to be in a home where their passions are supported. If the child lives in a close-knit neighborhood with other adults that the child can go to for support and/or other children that the child plays with regularly, it may be in their best interests to spend more time at that house.

These are just some examples of what this criterion may include. The Court will consider the schedule and passions of the child when making a parenting time determination.

6. Mental and physical health of parties and the child

The Court is prohibited from discriminating against any party due to a physical or mental disability. However, if there is a disability that severely impacts the child, the Court will consider it.

Similarly, if the child has needs for a physical or mental disability or impairment, the Court will look at the parents' support and involvement in the same. Who has the handicap accessible ramp for the child in a wheelchair? Who takes the child to their speech therapist appointments? Who is in communication with the child's doctor about necessary surgeries or procedures?

7. The party's ability to encourage a loving relationship with the other party

The Court recognizes that children benefit from a supportive relationship with both of their parents. This is why Courts prefer, absent extreme circumstances, that the child have consistent time with both parents equitably (not necessarily 50/50, but equitable).

If one parent is constantly disparaging the other in front of or to the child, this does not promote a healthy relationship with the other parent. By contrast, if one parent helps their child pick out a birthday present for the other parent, this shows the child that their relationship with the other parent is supported.

The Courts take this into high consideration because the better parents are able to work together, the better their children settle into the new circumstances of their family. This also helps keep parties out of future litigation as well.

8. Physical proximity of the parents to one another

The time that a child spends in the car going between the parents' houses is referred to as "windshield time." It should go without saying that a child benefits from as little windshield time as possible. I have four kids and have seen thousands of family law matters and I've yet to meet or hear from a child that they love being belted in a car for hours. As such, if the parties live a significant distance apart, windshield time is a factor.

At the same time, it should be said that long distances between parties does not automatically mean that a 50/50 parenting time schedule cannot be achieved. There are several creative ways to make the parenting time split evenly that does not involve hours of exchange time between houses.

9. Past and present involvement of each party and how it reflects a system of values, time commitment and mutual support

I have seen countless cases where one parent has been more or less "hands off" in the rearing of the child and suddenly, when a case is filed and support is at issue, they become the most involved parent ever. This can be frustrating to a parent that has played a larger support role for the child if they feel that their efforts are not going to be recognized.

Courts are not stupid nor are they naive. This scenario happens in family law matters frequently. This is why the Court will determine the past involvement -- who historically has taken the child to soccer practice and dentist appointments? -- and present involvement -- the "absent" parent now showing their ability to be involved when they were not before.

10. The ability of the parent to put the child's needs before their own

This is by far, in my experience, the biggest factor of all ten of these on the list. When I was first a paralegal, I had an attorney tell me that they try to encourage their clients to start every sentence they have on parenting time with the words "the kids." This helped to keep the focus on what is best for them rather than on the party's wishes.

As a parent, I can attest that I want to spend every moment I can with my children. However, I can also recognize as a parent of now adult children that letting their needs be at the forefront is paramount. While I would love for my kids to again be all sitting at the table for dinner, I can confirm that they are all living lives that align with their needs and wants. Instead of spending dinner with mom (what I want), they are working full-time and have friends and relationships of their own that they might rather spend time with (what they want). Instead of taking it personally, it is imperative that you take a step back and look at it from your child's genuine perspective. Then, work through what schedule might look best for them regardless of your wants or any support you may be obligated to pay as a result.