Parenting Time

Parenting Time

By Carl O. Graham

custody, parenting, family

In every family law case where the court has jurisdiction over the parties’ minor children, the court will consider the issue of parenting time. Parenting time is a broad area that covers what used to be known as “custody” - the court will determine where the children live, whether the parents share time equally or not, and what the specific parenting schedule should be.

Effective in 1999, Colorado abolished use of terms such as “custody” and “visitation”, using instead “parenting responsibilities” and “parenting time.” C.R.S. 14-10-103. The change was solely to nomenclature - that statute specifically states that no substantive change was intended.

Colorado will apply the “best interest of the children” standard when determining what a parenting schedule will look like.

Equal Parenting Time

The Colorado legislature has declared:

“While co-parenting is not appropriate in all circumstances following dissolution of marriage or legal separation, the general assembly finds and declares that, in most circumstances, it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage.”

C.R.S. 14-10-124(1).

There is no statute or court decision holding that this means equal parenting time; indeed there have been efforts over the years to create such a presumption, but all have failed.

However, the reality is that in modern Colorado, most judges tend to apply a presumption of equal parenting time. That does not mean they end up at equal time, just that instead of a bias in favor of one parent or the other, they tend to start with the idea that parents should be co-equal unless persuaded to the contrary.

From a practical perspective, it is realistic to expect equal time unless:

  • One parent wants less than equal time.
  • One parent is less “fit” (typically has substance abuse issues, has committed domestic violence, or otherwise has a criminal record).
  • One parent’s work schedule precludes equal time (works nights, long hours, or travels a lot)
  • The child is a pre-schooler not accustomed to being away from the majority parent.
  • The child is a teenager with strong views for or against a parent.
  • The parties do not live near enough to one-another to share time equally.

Weekly Parenting Time for Local Parents

As indicated, it’s reasonable to expect equal parenting time. What does this look like? Typically, one of two schedules:

  • Week-on, Week-off. The children spend a week at a time with a parent, then on the exchange day, go the other parents’ house. This schedule is used more with older children who can readily adjust to spending a week away from the other parent, and has the advantage of reducing the exchanges, and therefore the potential for strife, between the parents.
  • 2-5-5-2 Split. Under this schedule, also known as a 2-2-3 split, one parent will have every Monday and Tuesday night, the other parent will have every Wednesday and Thursday night, and then the parents will alternate a long weekend consisting of Friday, Saturday and Sunday nights. This schedule is the most common, especially with younger children. And while it looks cumbersome, it you actually plot it out on a calendar, it ends up with one parent having 5 days, the other parent having two days, then the schedule flips, with the first parent having 2 days, and the other parent having 5 days.

While not for everyone (particularly in a high conflict case where you may wish to minimize transitions between houses), a 2-5-5-2 schedule has two key advantages over alternating weekly:

  • It minimizes the time the children spend away from one parent to 5 days instead of 7. And it also means that a parent will either wake up with the kids, or put them down at night, 9 days out of 14, so chances are a parent will see the children on their birthdays, or within one day, rather than having to wait a few days.
  • It’s more predictable - a parent knows that he/she has the kids every Monday and Tuesday, so is fully responsible for their activities those nights every week, and can then also plan to work longer hours, for example, on Wednesday and Thursday.

While the 2-5-5-2 and 7-7 schedules are the most common, parents are free to come up with whatever works. I’ve seen parents who want to rotate every two weeks, and in one case, monthly, although that is probably too long in most people’s opinions, and a judge may question whether such a long schedule is in the children’s best interests.

Moreover, when a parent works nights, mid shifts, etc, the parents, or a judge, may well order the schedule to accommodate that work as much as possible, for example by changing the off-days to coincide with the schedule. In these cases, a 4-3-3-4 schedule may work better. For ideas on parenting schedules, and sample calendars, see CustodyXchange.

Sometimes parents may choose a more “traditional” schedule (i.e. the old “every other weekend” schedule), for example if one parent travels during the week, or the parents don’t quite live close enough to share school nights. In these cases, the children will live with one parent primarily during the school week, and the other parent will typically have 2-3 weekends per month, either from Friday to Sunday evening, or if logistics permit, Friday through Monday morning when school starts.

There is no bright-line rule as to how close the parents have to live to each other in order to have equal parenting time. Typically, when parents live under 30 minutes apart, their proximity is not a barrier to equal time, and if they live more than about an hour apart, weeknight parenting would be unusual.

If the parents live within a reasonable driving distance of each other (again, no bright line rule, but probably under 3-4 hours), a court would typically order that the distant parent have regular weekends. Beyond that, it would be just holidays and vacations.

Holidays & Vacation Time

Local parents typically share the more important holidays:

  • Spring break - alternate
  • Mother’s Day/Father’s Day - to the applicable parent
  • Summer - each parent gets at least a week or two of uninterrupted time with the children.
  • Fall break (if any) - alternate.
  • Thanksgiving - alternate
  • Winter Break/Christmas - typically alternate and share, so one year one parent has Christmas night, the next year the other parent does, although I’ve seen 1st half/2nd half schedules as well.
  • Child Birthdays - sometimes they would be alternated, but for example with a 2-5-5-2 schedule each parent will see the kids within a day or two of their birthday, and have a weekend immediate before/after the birthday, so there is plenty of time to celebrate without carving out a specific rotation.
  • Parent Birthdays - sometimes parents will have the children for their own birthdays.
  • Minor holidays - sometimes parents will want other holidays rotated, such as 4th of July, Labor Day, or Halloween.

Parenting Schedule for Distant Parents

As indicated, once parents live more than 3-4 hours apart, it’s usually not practicable for the distant parent to have regular weekends, much less equal time. In such cases, the children will live primarily with one parent, and the absent parent typically has parenting as follows:

  • Spring break - either alternate, or every year.
  • Summer - about anywhere from 6-10 weeks, assuming it is age-appropriate for the children.
  • Thanksgiving - alternate
  • Winter break - either split 1st half/2nd half, or alternate the full break annually
  • Weekends - the absent parent would have the option of additional weekends by visiting the children in their own city, at the parent’s expense.

Other than the optional weekends, the absent parent would see the children about three times per year or so. And the parents would share the children’s transportation expenses proportional to their incomes.

If parents live on different continents, the time and expense of traveling make it impracticable for all but summer and winter breaks.

Restriction of Parenting Time

A parent can seek, under C.R.S. 14-10-129(4), to restrict the other's parenting time by filing a motion alleging a child would be in imminent physical or emotional danger due to the parenting time. By filing the motion, the other's parenting time is automatically required to be supervised until the court either denies the motion or conducts a “forthwith” hearing within 14 days.

If the court fails to conduct a hearing within 14 days, the requirement that the other's parenting is restricted is automatically terminated. In re: Marriage of Slowinski & Pagnozzi, 199 P.3d 48 (Colo.App. 2008). If, at the hearing, the court concludes that the motion was substantially frivolous or vexatious, the court is require to impose attorney's fees on the person who filed it.

Do Mothers Win Custody Fights?

It depends. On paper, Colorado family law is gender-neutral between the mother and father. That means each parent theoretically has an equal opportunity of obtaining primary residential responsibility.

The reality is if there is a “custody battle” between two parents when compromise or equal parenting is not possible (e.g. the parents do not live near one-another), mothers in a more “traditional marriage” still tend to win more of them. But that’s not because of their sex, but because of other factors related to the role each parent has had in raising the children. While in many modern marriages both parents work and have shared somewhat equally raising the children, in relationships with one working parent, the stay-at-home parent necessarily has ended up primarily raising them.

In other words, the primary parent tends to “win” a custody battle, not the mother. But if the mother was the primary parent during the marriage, she will have the advantage at dissolution. And while the “tender years” doctrine has been abolished, the younger the children are, the more likely it is that they will spend a majority of the time with one parent, rather than equally.

More Information

Denver, Colorado Mediation Resources: Child Custody, Parenting Plans and Family Information. Consider mediation as an alternative to litigation, and the site has excellent information on parenting arrangements, including suggested parenting time schedules.

Connecting With Your Kids. An extremely detailed booklet highlighting the various laws and factors which affect parenting time, including sample plans, etc.

Do You Need a Child Custody Lawyer in Colorado Springs?

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Parenting & Custody