“Custody” in Divorce

“Custody” plans – or what we call Parenting Plans – are some of the hardest aspects of a divorce with kids. Good plans develop from a high degree of cooperation by both parents. Parents who put their kids first can develop a custom-tailored Parenting Plan that is flexible, fair, and in the best interests of their children. Parents who have other priorities, or use their children to meet some other goal, are generally incapable of developing positive parenting plans.

“Terminology – Or Philosophy?”

We’ve used the word “custody” here only because that’s what most people think of when they talk about time with their kids after a divorce. It’s the wrong word to use and here’s why:

First of all, Colorado law doesn’t recognize the word. If a lawyer walks into court and starts talking about “custody”, everyone in the room knows they’re a rookie. When a party uses the word “custody”, you know their attorney hasn’t done a very good job of educating the client.

Instead, we talk about:

Is this just splitting hairs, or is there some meaning behind the distinction? Actually, if you stop and think about it, it makes perfect sense. “Custody” can be defined as “the care, possession, and control of a thing or person.” Now, “care” might be a good word to use, but who talks about their kids in terms of possession and control?

In a divorce, kids come first – we (parents, lawyers, judges) try to do what’s best for them. Using the term “custody” places the kids as secondary to the alleged “rights” of the parties. They’re not. Kids come first.

Philosophy of Parenting Time

The parenting time side of the equation deals with dates, times, places and scheduling in general. Things like how the week will be split up between the two homes, where transitions will occur, what are the arrangements for holiday parenting time, and summer schedules are common elements of a parenting time plan. These plans may also include transportation issues and costs.

Many parents begin with the best of intentions and believe that being detailed in a parenting plan is too restrictive, or confrontational. They don’t really need it, they think. Yet the best way to keep it from becoming confrontational is, in fact to be extremely detailed. This provides certainty and security. If things come up on a day-to-day basis you can always make changes to the parenting time by agreement of the parties.

In our experience, the more detail a plan contains, the more likely it is to endure without conflict later, and the less detailed the plan, the more likely unanticipated circumstances will arise and lead to conflict.

Idea Behind “Decision Making”

Who decides which school a child attends, which church they go to, which doctor they see? These decisions are huge and have lasting effects on the well-being and development of a child. So important are these decisions, courts separately consider each parent’s ability to make wise decisions for the child and allocates, between the parents, decision making responsibility.

Since a person’s skill and experience with decision making is generally not directly related to their parenting time, the law wants to take a separate and distinct look at the process of decision making for the minor kids and determine if the parents are able to work together on all decisions, or whether the decision making responsibility should be divided up.

Notice we use the word responsibility when it comes to decision making. Making these decisions on behalf of your kids is a serious and thoughtful responsibility – it is not a right or a trophy to be fought over and “won” in a courtroom. In fact, approaching decision making arguments from this perspective may demonstrate to a court your complete lack of ability to make sound decisions!

Another consideration for determining decision making can be a review of how the family reached decisions before the divorce began. How did the parents select the doctor, the school, or the day care? Just because one parent may have done all the leg work in gathering the information and reviewing candidates, doesn’t necessarily mean they are better decision makers, but reminding each other of the processes you used during the marriage may be useful in developing functional process for application after the divorce.

Fighting Over “Custody”

“Custody” battles can be the most expensive aspect of any Colorado family case. Not only do these conflicts exhaust bank accounts, they can work irrevocable harm on the parties and the children. Entering into a high conflict custody case should be a carefully considered option with realistic goals.

Financially, the attorney fees and other expert witness fees associated with contested “custody” can easily exceed $30,000 and in some cases, enter into the hundreds of thousands of dollar range. While some cases are far less than this amount, you simply cannot underestimate the cost of fighting over issues like parenting time and decision making.

Yet there is no doubt that many of these fights are legitimate and necessary. There’s no escaping a conflict when you feel your child is endangered, or when the other parent makes false accusations. In these, and many other, circumstances parents have little choice but to engage in a legal battle. In those cases, it becomes even more important to use cost saving measures.

Colorado Divorce – Dividing Up Kids?

Talking about "50/50" or "60/40" makes it sound like we're treating the kids like a bank account.





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