What is child custody? In Colorado we no longer use the term “custody” in matters of domestic relations except in the area of dependency and neglect cases where the state, through the county department of human services, actually removes a child from their home and places all legal and physical custody of the child with the state. Only in dependency actions, where, a state actor is impacting the family is the legal notion of custody still recognized. Why? The legal concept of custody was ill suited and poorly described what was actually going on in the family when children were present and two parents were requesting the court to make orders with regards to the parent’s rights and obligations as they pertained to the child or the child’s rights.
We now use, and have for some time, the notion of allocation of parental responsibilities. This term actually encompasses two major areas; 1) the rights of parents to make decisions regarding their children and; 2) the ability for parenting time, or visitation, to be established between the parents and the child. Parenting time, or visitation, can take several forms depending on the circumstances of the case at issue. The parents may have a relatively equal amount of time with the child whereby no one parent is actually the residential custodian of the child, or one parent may be the residential custodian (or as is sometimes called the “custodial parent”) where the child lives for a majority of the time and the other parent (sometimes called the “non-custodial parent”) enjoys parenting time, or visitation, with the child.
In dissolution matters the issues of the child are encompassed within the action and handled at the same time as the dissolution. However, in cases where the parties were never married there is no standing for a dissolution and, as such, a petition for allocation of parental responsibilities is drafted and filed with the court.
One major difference between the filing of a dissolution petition, where the parties are married, and a petition for allocation of parental responsibilities is the presumption of parentage between the father and the child. In Colorado there are a number of “presumptions of paternity” and while they certainly apply within the framework of Article 14 and the Uniform Marital Dissolution Act (UMDA) they are listed within the children’s code and can be found at C.R.S. 19-4-105. A man is presumed to be the father of a child if:
- He and the child’s natural mother are or have been married to each other and the child is born during the marriage, within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity of marriage, dissolution of marriage, or divorce, or after a decree of legal separation is entered by a court.
- Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and, if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within three hundred days after its termination by death, annulment, declaration of invalidity of marriage, dissolution of marriage, or divorce; or if the attempted marriage is invalid without a court order, the child is born within three hundred days after the termination of cohabitation.
- After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and he has acknowledged his paternity of the child in writing filed with the court or registrar of vital statistics, if such acknowledgment has not previously become a legal finding pursuant to court order or investigation.
- With his consent, he is named as the child’s father on the child’s birth certificate.
- He is obligated to support the child under a written voluntary promise or by court order or by an administrative order.
- While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child.
- He acknowledges his paternity of the child in a writing filed with the court or registrar of vital statistics, which shall promptly inform the mother of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the court or registrar of vital statistics, if such acknowledgment has not previously become a legal finding pursuant to court order or investigation. If another man is presumed under this section to be the child’s father, acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted.
- The genetic tests or other tests of inherited characteristics have been administered and the results show that the alleged father is not excluded as the probable father and that the probability of his parentage is ninety-seven percent or higher.
So you can see that when a dissolution is filed and the children were born of the marriage it is presumed that the children are the father’s, this is not the case in all allocation cases and the father has the ability to challenge parentage within the APR action (presuming that he is not the petitioner).
Divorce affects children to the greatest degree, they are young and love both parents, regardless of what the parents think of each other. If you are contemplating a divorce where children are involved or if you have a child with another person and are not married please call Arnold & Associates to discuss the ramifications of the action on your child (or children) and to speak to a knowledgeable attorney with years of experience of handling these delicate matters. Arnold & Associates also handles cases where a party believes that a modification of parenting time or decision making may be appropriate. If you feel that parenting time or decision making needs to be modified please contact Arnold & Associates for a free consultation.
In each and every case that is brought before a Colorado Domestic Relations Court in which children under the age of 19 are present the Court is obligated by law to protect the child or children’s best interest. Part of the Court’s obligation is to protect the child’s right to child support. In Colorado child support is determined by a mathematical formula. There are a number of factors that go into obtaining the exact amount of child support but the major areas are
Gross income of the parties
Number of children under 19 years of age
Number of overnights the child (or children) have with each party
Child Support directly impacts the children of the marriage or relationship and is a complicated area of the law. Contact Arnold & Associates to set up a free consultation regarding establishing child support or modifying child support if you already have a child support order.