Parental Decision-Making

Parental Decision-Making

By Carl O. Graham

children, decision-making

Decision-making is distinct from the parenting time schedule. Even if one parent has majority time, the court will generally order joint decision-making over major issues involving the children (sometimes referred to as "joint custody"). That means neither parent can unilaterally make major decisions for the children. Joint decision-making obviously works best when the parents share similar child-rearing values, and it helps if they get along.

Standard for Initial Decision-Making Order

The standard for the initial determination of decision-making responsibility is “best interests of the child”. There are several statutory factors the court is required to consider, as discussed more fully in the best interests of the children article.

Major vs. Minor Issues

There is no set definition on what constitutes a major issue. Typically, they are those affecting the following:

Heath. The parties are required to agree before selecting or changing providers, surgery, or elective medical treatment. Typically they do not need to consult one-another before “minor” treatment that simply requires a visit to the doctor’s office and a prescription, though they should still tell each other about such issues.

When the parents cannot agree (e.g. on the need for braces or elective surgery), experience suggests that the parent who is following medical advice will generally prevail over the other parent. And if there is conflicting medical advice, the outcome is anyone’s guess.

In case of an emergency where contacting the other parent is not practicable, either parent may unilaterally consent to necessary treatment, then tell the other as soon as possible.

Education. Home-school the children? Which school should a child attend? Should a child have tutoring or take special classes? These are major issues the parties need to agree on.

General Welfare. This is a “catch-all”, and covers such issues as participation in dangerous activities (if you’re going to bring a child sky-diving, better have the other’s consent), travel to a dangerous foreign country, whether to get a driver’s license, tattoos, etc.

In general, if a decision will have impact beyond one parent’s time, it should be a joint decision. So a routine haircut is fine, but not a radical change in hairstyle. Bringing a child to a sporting event is fine, but signing a child up for a league which has practices and events that impact the parenting time of both parents require consent. And therapy requires mutual consent.

Events or conduct which occur entirely during one party’s time with no impact beyond, and do not impose risks to the child are more likely to be minor decisions that a party may choose unilaterally.

The parent who the children are staying with at the time typically makes the day-to-day decisions regarding them, such as household hygiene & discipline, bedtimes, studying vs. television, etc.

When there is a dispute on whether or not something is appropriate, judges tend to be conservative (not in the political sense, but in the sense of looking to the status quo for guidance). If there is already a pattern of the children doing things a certain way, undergoing a type of treatment, attending a certain school, etc, the parent seeking change will have the burden of proving why the change is in the children’s best interests.

Extracurricular Activities

Perhaps the single largest area of dispute when it comes to two local parents is the children’s participation in extracurricular activities. When children join a league, there is a time commitment for practices and games which spans both parents’ time, so the cooperation of both parents is necessary.

What if one parent unilaterally rejects the children’s participation in activities? Or a parent loads the children up with activities the other considers excessive? Or a parent’s work duties prevent that parent from supporting the activity? Or the parents disagree about which activities a younger child should do?

Most judges would not tolerate a situation where the children have no activities due to one parent digging in his/her feet. While there is no one right answer, most solutions I’ve seen involve the judge ordering a split of activities - one parent chooses the fall semester and the other the spring semester. Or each parent picks one activity at any given time. But both parents are then expected to bring the children to and from their activities, regardless of which parent chose them.

What of the costs? Again, there is no clear answer. Sometimes it’s up to the parent who picked the activity to pay for it. Other times the court will order the costs shared, either equally or proportional to incomes.

Access to Children's Information

It is difficult to share in major decision-making without information pertaining to the children. And Colorado law requires this - C.R.S. 14-10-123.8 provides:

“Access to information pertaining to a minor child, including but not limited to medical, dental, and school records, shall not be denied to any party allocated parental responsibilities, unless otherwise ordered by the court for good cause shown.”

To implement this, most parenting plans require parents to provide each other with the contact information for physicians, day care providers, and other third parties providing services for the children, and to proactively tell the other parent of illnesses, injuries, etc.

But this does not mean that a parent must spoon-feed every scrap of information to the other - parents provide one-another with the means of accessing information, and tell them about appointments that they may have set up, but it’s then up to each individually to do the rest.

If a parent habitually fails to attend parent-teacher meetings or child medical appointments, the parent who shows a greater interest has the advantage in case of a dispute over education or health.

Avoiding Disputes

The best time to address decision-making issues is when the parents are obtaining a divorce in Colorado. As an example, the parents may anticipate some of the issues which will arise, and set up rules in advance, such as what religion the children will be, whether they will be educated in public or private schools, etc. The parents can also define any issue as a "major" issue requiring joint decision-making, such as exposure to firearms, the age to start driving or dating, body art & piercing, etc.

Finally, if the parents ultimately disagree, a parenting plan should contain a dispute resolution process to avoid the parents having to run to their divorce lawyers and the Colorado family law court every time a dispute arises. The dispute resolution may require consultation, but give one parent the ultimate decision in case of disagreement. Or it may solicit the assistance of a third party to act as a parenting coordinator, mediator, or even an arbitrator (akin to a private judge).

Modification of Decision-Making

Under C.R.S. 14-10-131, a domestic relations court shall not modify decision-making responsibility absent a change in circumstances making the modification necessary to serve the best interests of the child. The standard for modifying decision-making responsibility is similar to modifying the majority parent - the established allocation of decision-making responsibility should be retained unless:

  • The parties agree to the modification,
  • The child has been integrated into the requesting party's family with the consent of the other party, and the integration warrants the change,
  • There was a modification of parenting time which justifies the change,
  • One party has consistently allowed the other to make unilateral decisions for the child, or
  • The child is endangered by the current allocation of decision-making responsibility, and the advantage of changing residence outweighs any harm such a change would cause.

If at dissolution one parent is awarded sole decision-making, the other parent in the future can try to get joint decision-making by showing that it is in the child’s best interests. But the same is not true in reverse - once parents have joint decision-making, a parent seeking to take away the other’s participation in decisions must show endangerment.

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Parenting & Custody