Many people talk about what they believe are the “best interests” of children going through divorce or other parenting time disputes. Oftentimes, it may seem like some people who use the phrase “best interests” are just throwing it out there to disguise or justify selfish behavior. In Colorado family law, the court considers all relevant factors, but there are certain statutory “best interests factors” that are specifically set forth in C.R.S § 14-10-124, and judges work hard to examine these factors when deciding issues regarding parenting time.
The statutory best interest factors are as follows:
1. The wishes of the child’s parents as to parenting time.
This first factor may seem a bit redundant, especially where the parents are actively litigating their own divergent positions about what parenting time should be. The purpose of this factor is to ensure that the court considers each parent’s opinions and desires with respect to parenting time, and the bases for such. Of course, just like in any other court proceeding, the judge will assess the credibility of each parent when analyzing his or her wishes with respect to parenting time.
2. The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.
This second factor allows the judge to consider what the children themselves want, so long as the children have the ability to express reasoned and independent preferences. In Colorado, it is rare to see a child testify in domestic relations hearings; typically, judges want the children shielded from the domestic litigation process as much as possible. Having children testify in court regarding a dispute between their parents would put undue strain and stress on the children. Some judges may be willing to talk to the children “in chambers,” which is so say, not in the courtroom proper, but in the judge’s office; however, such instances are rare and depend upon the circumstances of the case and the judge assigned to the dispute. Instead, it is preferred and more common to use parenting experts, who talk to the children in private and report back to the judge regarding the children’s wishes. While the use of experts adds expense to the proceedings, if you do not have an expert, the hearsay rule of evidence will usually prevent the parents from testifying what their children told them about their parenting time preferences.
3. The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests.
It is important to examine the child’s relationship with each parent, the child’s siblings, and other persons significant to that child’s development and environment. The judge needs to determine which relationships are healthy for the child, and which relationships may be harming the child, and make decisions on parenting time accordingly. Patterns of physical, sexual, and emotional abuse, substance abuse, anger management, neglect, and the like are important in analyzing these interrelationships.
4. The child’s adjustment to his or her home, school, and community.
Divorces and break-ups involve the splitting of households and living arrangements. They often precede one parent moving to a different city or state from the other parent. The courts will carefully analyze the effect of such moves, along with decisions regarding the children’s schooling and other community activities, to ensure that the proposed parenting time is in the child’s best interests.
5. 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 parent’s mental and physical health is important in determining parenting time. For example, a parent whose mental health issues are so crippling that he or she cannot properly take care of a child might have only limited or supervised parenting time until the condition can be better managed. On the other hand, the mere fact that a parent suffers from a disability does not alone prevent that parent from having parenting time; it must be shown that the mental or physical condition of the party negatively affects the child in some material way.
6. The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party.
Many parents involved in domestic relations disputes find it difficult to encourage the sharing of love, affection, and contact between the children and the other parent because of their own personal feelings about the other parent. However, children typically love both parents, even the crummy ones. Courts expect parents to set aside their own negative feelings toward one another when interacting with their children (except in extreme cases where the child would be exposed to danger by the other parent). You may have heard of the term “parental alienation” in this context: the term usually refers to the behavior of one parent causing a child to grow distant from, disrespect, fear, or become hostile toward the other parent. The courts are very sensitive of parental alienation issues because the phenomenon is rampant in domestic relations disputes, and it can cause short-term distress and long-term damage to children. Parents who speak poorly of the other parent or unreasonably withhold children from the other are causing alienation, which directly contradicts this best interest factor.
7. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support.
A parent’s history of involvement in a child’s life is often evidence of that parent’s dedication and devotion to the child. It is also important to reduce, as much as possible, disruption of the child’s world. One of the purposes of this factor is to guard against parents seeking parenting time solely for the purpose of reducing a child support obligation, or to deprive the other parent of their parenting time wishes, where they actually had little or no involvement in their child’s life, or spent minimal time with the child, or failed to provide support for the child.
8. The physical proximity of the parties to each other as this relates to the practical considerations of parenting time.
While the judge will not order that parents must live in a certain geographic area, the judge will certainly take into account where the parents live in relation to one another when deciding parenting time. The further apart parents live, the more strain it places on the children’s involvement in exchanges, school, and social activities, as well as the children’s leisure and play time. If a parenting plan requires that a child’s schooling is adversely disrupted, or that much of the child’s time is spent traveling between homes, it is going to be tough to convince a judge it is in the child’s best interests. For example, where parents live several hours of drive time apart, a “50/50” parenting plan would almost never be ordered because of the child’s school schedule.
9. The ability of each party to place the needs of the child ahead of his or her own needs.
Parenting well is difficult and requires a great deal of sacrifice by the parent. Parents who selfishly place their own needs ahead of the child’s cause harm to the child’s development. Parents seeking parenting time should be able to show the judge concrete examples of how they have sacrificed time, money, and energy for the children’s benefit. Parties who have demonstrated they are unable to make the children a priority have a difficult time convincing the judge that they deserve more parenting time with the child.
Divorces and custody disputes are extremely hard on children. Colorado courts are very sensitive of this fact and work hard to ensure that the children are harmed as little as possible by the parenting time arrangement. Judges will carefully weigh each of the best interest factors to determine the best parenting plan under the circumstances.
If you have questions about what is in the best interests for your children, or other family law issues, please contact Springs Law Group. Our experienced lawyers offer free consultations on domestic relations issues. We would be happy to discuss how we can help you with your particular situation.
Christopher Nicolaysen is a Family law Attorney who practices in Colorado Springs, CO. He graduated from Denver Sturm College of Law, and has been practicing law for several years now. Christopher Nicolaysen is passionate about helping you solve your family matters. Learn more about his experience here.