How Courts Decide Custody

Many couples planning their divorce will choose to share custody (known as parental responsibilities in Colorado) if there are children. Nevertheless, some couples will disagree on the other parent’s rights, duties and obligations, leading to one of the most complex and emotional parts of the divorce. It may even lead to litigation before a judge.

Generally, family experts believe that it is best for the children if both parents are active in the child’s life. Parents with shared responsibility are encouraged to work together so the child can transition seamlessly between homes, even when the time spent at each one is not the same. Shared parental responsibility does not mean equal time with each parent, and it is different from child support, but it does mean that the two parents have an equal say in raising the child. It involves decisions on education, religious upbringing, health care choices and visitation. Both parents are notified when there is a health emergency, and they can control the child’s ability to travel or relocate and share control over the child’s estate.

These and other issues can lead to heated disputes over what they believe is best for the child. It can lead to conflicts where only a judge’s ruling will resolve it.

Issues weighed by the judge

Each family’s situation is different, but the judge will often weigh the following issues:

• Ties to a home, siblings (if any), school or community
• The child’s age
• Their physical and emotional health
• Their relationship with each parent
• The parents’ ability to meet the child’s needs
• The parent’s mental and physical health

The child’s wishes are also considered

Older children who are not yet 18 can also express their preferences, particularly when it involves the choices of residency, conservatorship and other priorities. The judge may also interview the child to determine what they want. While the child’s wishes are a consideration, the judge must weigh all factors before deciding.

Parents should resist the temptation to coerce, pressure, bribe or impart undue influence on the child, which will backfire if the judge determines that the parent engages in this behavior. Instead, the parents should work toward accommodating the child’s wishes.

Clearer heads can prevail

Parents fearing a custody battle can call upon an experienced family law attorney. These legal professionals can help address litigation or provide creative solutions before going through the additional stress of going to court.