The Colorado legislature has determined that children have the right to have determinations involving them be based upon the "best interests of the children". C.R.S. 14-10-123.4.
The problem is obvious - when the two parents who know the children best disagree, how is a stranger in a black robe supposed to know what is in the children's best interests? Simple - pass another law.
C.R.S. 14-10-124(1.5)(a) outlines the criteria to determine whether a parenting schedule is in a child's best interests:
- The wishes of the child's parents;
- The wishes of the child, if sufficiently mature (typically starts about 12 or so),
- The relationship between the child, the parents, siblings, and any other person who may significantly affect the child's best interests;
- The child's adjustment to his or her home, school, and community;
- The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
- The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
- The physical proximity of the parties to each other;
- Whether a party has been a perpetrator of child abuse or neglect;
- Whether a party has been a perpetrator of spouse abuse;
- The ability of each party to place the needs of the child ahead of his or her own needs.
C.R.S. 14-10-124(1.5)(b) outlines additional criteria, in addition to the criteria outlined above, for a court to consider when determining parental decision-making responsibility:
- Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;
- Whether an allocation of mutual decision-making responsibility will promote more frequent or continuing contact between the child and each of the parties;
- A perpetrator of child abuse or neglect may not have decision-making over the other's objection;
- A perpetrator of spousal abuse may not have decision-making over the other's objection, unless the court finds that the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child.
C.R.S. 14-10-124 prohibits courts from considering the following in determining the best interests of a child:
- Conduct which does not affect a party's relationship with the child (since Colorado has no-fault divorce, courts don't want custody fights to be an excuse to bring in irrelevant allegations, such as adultery).
- Gender of the parties.
- A request for genetic testing.
- A parent leaving the home due to the other's spousal abuse.