Best Interests of the Children

custody fight, best interests of children

Allocation of parental responsibilities The court shall determine the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child…” C.R.S. 14-10-124(1.5) (Emphasis added).

When making an initial custody determination (i.e. the first order pertaining to parenting time or decision-making), the Court is required to act in the child’s “best interests”. As the term suggests, this means that the court is looking out for the child, not necessarily what the parents want.

Best Interest of the Child Factors

When determining the child’s best interests, C.R.S. 14-10-124(1.5)(a) sets out nine factors the court is require to consider when determining parenting time:

  1. The parents’ wishes.
  2. The child’s wishes “if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.”
  3. The relationship between the child and parents, siblings, and any other person who significantly affects the child’s best interests.
  4. The child’s adjustment to home, school and community.
  5. Mental & physical health of everyone involved (but disability alone cannot be a basis to deny or restrict parenting time).
  6. The parties’ abilities to encourage sharing of love, affection & contact between the child and other parent (but actions to protect a child from witnessing or suffering abuse shall not be considered for this factor.
  7. Whether the parties past involvement shows a system of values, time commitment, and mutual support.
  8. How far apart the parties live
  9. (Repealed)
  10. (Repealed)
  11. The ability of each party to place the needs of the child ahead of his or her own needs.

For purposes of decision-making, the same 9 factors apply, plus C.R.S. 14-10-124(1.5)(b) adds 3 additional factors:

  1. Whether the parties can cooperate and make joint decisions.
  2. Whether the parties’ past involvement shows an ability to make joint decisions which provide a positive and nourishing relationship with the child.
  3. Whether joint decision-making would promote more contact between the child and each party.

Factors A Court May Not Consider

Because Colorado is a no-fault state, “The court shall not consider conduct of a party that does not affect that party's relationship to the child.” C.R.S. 14-10-124(2). Three specific prohibitions are listed;

  • The sex of the parties. C.R.S. 14-10-124(3). In the not-too-distant past, court presumed that mothers were somehow better-equipped to raise children solely because they were women. While it may be true that the factors in a particular case favor one parent, the law does not give an advantage to one parent solely because of her sex.
  • A request for genetic testing. C.R.S. 14-10-124(3.5). The fact that one parent wanted to be sure who the father was is not relevant for parenting purposes.
  • Leaving home due to domestic violence. C.R.S. 14-10-124(4)(c).

There may be a whole bunch of reasons why a marriage collapses, or why one spouse believes that the other is a “bad” spouse, but unless they specifically impact that person as a parent, they are not relevant. While these are not excluded by statute, factors courts will typically not consider include:

  • Salary. Whether a parent earns more than the other is immaterial, and one of the reasons we have child support to ensure the children are cared for.
  • Sexual orientation (this was an issue back in the 1970s, but in living memory courts have not cared whether a parent was heterosexual, homosexual or bisexual.
  • Adultery. Cheating on a spouse does not make a person a bad parent.
  • Job. Whether a parent has a “disfavored” profession, such as being an exotic dancer, massage therapist, etc.
  • Religion
  • Educational level
  • Being in therapy

Moreover, while the court may consider minor criminal conduct, this is a grey area. Generally, one spouse having traffic infractions, or even one instance of minor criminal conduct (bouncing checks, etc) will not significantly impact parenting.

That’s not to say that “fault” is never relevant. If one spouse is divorcing the other due to a drug or alcohol problem, for example, that issue is certainly relevant for purposes of parenting. Same as domestic violence, more serious offenses, or if a parent is a serial offender with a long history of minor offenses. In each of these cases, the court may well consider that the party’s misconduct calls into question his/her abilities as a parent.

Child Abuse, Domestic Violence & Sexual Assault

“When the court finds by a preponderance of the evidence that one of the parties has committed child abuse or neglect, domestic violence, or sexual assault resulting in the conception of the child, the court shall consider, as the primary concern, the safety and well-being of the child and the abused party.” C.R.S. 14-10-124(4)(d).

A finding that a parent committed abuse triggers additional protections for the child that the domestic relations judge is required to consider, and in certain circumstances, joint decision-making is prohibited. For a complete discussion of the law surrounding child custody with allegations of domestic violence, see the Domestic Abuse & Parenting in Colorado article.

Do You Need a Child Custody Lawyer in Colorado Springs?

The family law attorneys at Graham.Law have years of experience helping clients through the Colorado legal system. We know Colorado family laws, inside and out, from divorce to legal separation, including parenting and child custody issues. For more information about our El Paso County family law firm, click on:

Colorado family law is all we do. Period.

Team Member: 
Carl O. Graham