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Parental Responsibility (f.k.a. Custody) and Parenting Time
A Passionate Issue
Often the most painful and most passionate issue in any divorce, paternity
case or other family break-up is the issue of how to handle the children. Who
they will live with, who will be responsible for child-rearing decisions and how
often and under what circumstances “parenting time” will be exercised are always
serious considerations.
How We Can Help
Kurtz & Peckham strongly believes that the best interests of the children
should be of paramount importance in the dissolution of any relationship
involving children. Recent studies have shown that being in the middle of
continuing conflict between their parents or care-takers is an extremely
stressful situation for children. This appears to be true whether their parents
(or other adults) stay together or not.
We are committed to helping our clients craft solutions that are in their
children’s best interests, while meeting our client’s wishes in this regard. We
utilize whatever means is most appropriate to facilitate a smooth, compassionate
and efficient transition from one family unit to two. This may include the
appointment of a special advocate, a parenting coordinator, the use of mediation
and or collaborative law, and family or individual counseling when appropriate.
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Commonly Used Experts
Special Advocate - A special advocate is an expert
appointed by the Court (and/or agreed to by the parties) whose sole job is to
ascertain the best interests of the children. They may visit all residences,
interview both parents, the children and anyone else they find helpful. They
may also have the parties take psychological tests. They make a written
recommendation to the Court concerning parental responsibility and parenting
time. Most courts follow these recommendations.
Parenting Coordinator - A Parenting Coordinator is again
an expert (usually) picked by the parties or the court to facilitate issues
surrounding parenting time, generally after the initial determination as to
parental responsibilities has been made.
Mediation - Mediation is where the parties (and their
attorneys, usually) hire a 3rd party neutral, trained in mediation to meet with
them and facilitate a process in which they can craft their own agreement
without going to court.
Collaborative Law - Collaborative Law is a shift from
the traditional adversarial approach to conflict resolution (where your lawyer
is like a gladiator). The collaborative process (the hallmark of which is
agreeing not to go to court, but to work to resolution) best supports those who
would like to protect children from the harm of adversarial legal action and who
would like to maintain relationships. It is not for everyone. For more
information on Collaborative Law divorces, click here.
Family Counseling - Family counseling or counseling for
one or both adults and or the children may be an option if anyone is in need of
professional emotional, mental or spiritual support during what can be an
extremely trying time.
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Fathers vs. Mothers and the Rise of “Non-Traditional” Families
In earlier times the common assumption was that children would live with the
mother and the father would have minimal visitation. During the last fifteen
years this assumption has slowly changed along with the law. More fathers are
active in their children’s upbringing. More women work out of the home than
ever before. There are some same-sex families and long-term non-married couples
with children. Society’s evolution as well as continuing research on the
family, what constitutes a family, and what best serves the needs of children
has also affected the changing status of children in familial break-ups. Now,
children may live primarily with their father. In rarer cases one child will be
primarily with the father and the other(s) with the mother. Some families
have a 50-50 split, which is also uncommon. There are even situations
where the parents move in and out of the house where their children live for
their “parenting time."
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What Factors Affect Parenting Time?
The courts, the family research and modern culture have an evolving view of what
“best interests of the children” means. The trend is to try and allocate as
much parenting time to each parent as is feasible should they desire it.
Colorado courts consider the following in efforts to determine best interests:
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The
"interaction" between the parents and the child
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The
ability of each parent to pt the children's needs ahead of their own
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The
child's adjustment to his home, school and community
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The wishes
of the parents
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The wishes
of the child
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Whether
the past relationship between the parents and their children demonstrates
common values, dedication and mutual support
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The mental
health of all parties
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The
parents' ability to encourage a loving relationship between their children
and the other parent
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How close
the parties live to one another
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Whether
either party has ever committed child or spousal abuse or child neglect.
The age of the children is a
key factor in the determination of parenting time. Most experts suggest that
parenting time with the non-residential parent should increase slowly if the
children are very young. This might not be such an issue if the children are
older. If the children are very young, initially the parenting time would likely
involve short visits on a regular basis, then gradually move up to longer
visits, over nights and then multiple overnights where appropriate. The
parenting time that results depends in large measure on the personalities of the
parents, the distance between their residences, the child’s activities and how
well if at all, the parents (or adults) are able to work with one another on
behalf of their children. In some instances the traditional “children with
mother and every other weekend with father” will be appropriate. In others,
spending 50% with each parent can work. In still other instances the father will
have the children the majority of the time and the mother will have weekend
parenting time. It is all determined on an individual basis always keeping in
mind the best interests of the children.
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Tools for High Conflict Cases
Kurtz & Peckham believes if at all possible, it is best for the children and
the parents if they can agree on a parenting time schedule either by
collaboration, negotiation, mediation or agreement to follow the recommendations
of a special advocate, as they (the parents) are far more familiar with their
children and family than a Judge can ever be. However, in those high conflict
cases, or cases involving abuse of either a spouse, partner or the children, it
may be necessary for the court to make the final decision. In that case we will
vigorously advocate for our client’s rights and preferences.
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Update in the Case Law - Relocation
A 2004 Colorado Court of Appeals case has clarified the law with regard to the
primary residential parent moving out of the jurisdiction. The parent who wishes
to leave the state with the children no longer has a presumption in their
favor. The court must consider a number of factors before deciding whether it
would be in the child’s best interest to be relocated. Two of the factors the
court must consider are (1) the expected impact of the move on the child and,
(2) the ability of the court to craft a reasonable parenting time schedule (with
the non-moving parent) if the move is allowed. In this May 2004 case, the court
denied the mother’s motion to relocate with the child.
For more information on this or any other child related issues, please feel free
to call Kurtz & Peckham at (303) 893-3045 or email our office at
office@kurtzpeckham.com for a complimentary one half hour
initial consultation with an experienced attorney.
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