Child custody and visitation can become a highly contested issue after parents separate, especially when parents have very different views about visitation schedules and how to raise their children.
In a contested custody case, parents will have the opportunity to work out many contested issues by agreement. Any joint decisions incorporated into an agreed order are still subject to court approval.
Types of Child Custody
There are several important terms to understand regarding types of child custody:
- Joint custody
- Primary custody
- Sole Custody and decision-making authority
Joint custody (or shared custody) means that each parent has more than 92 overnights of parenting time with a child or children in a given year. Joint custody may not be feasible if parents live very far apart as geography often dictates parenting plans.
Primary custody means that a child lives with one parent for most of the time and has visitation with the other parent pursuant to a parenting plan. Typical parenting plans will breakdown parenting time based on the distance between the parties and the school calendar where the child or children attend school.
Sole custody and decision-making authority is where one parent has the child or children all of the year or where the other parent has limited contact with the child. If a parent has sole decision-making authority that parent is empowered to make all major decisions (health, education, religion, etc.) for the child.
Child Custody Hearings
After separation, if parents cannot agree on a visitation schedule, it may be necessary to request a temporary orders hearing for a court to make decisions regarding visitation and custody while a divorce or custody case is pending. The provisions in a temporary order will remain in place until a final hearing.
At a hearing in a child custody case, each parent will be given the opportunity to testify about their relationship with their child and present evidence from other witnesses. Typically, a parent will be asked about how much time they spend with their child, their housing arrangements, and their ability to financially support their child if granted custody.
If there are allegations of substance abuse, the parties may be ordered to submit to drug or alcohol testing.
Parents in a custody case may work out a parenting plan themselves and request a court's approval. In many cases, this is a good idea because a court-ordered schedule may not work as well as a plan that parents were able to work out themselves. Parents should take into account their work schedules as well as a child's school and extracurricular activities when creating a parenting plan.
If parents cannot agree on a plan, a court will order one. A court-ordered parenting plan is usually a default schedule if parents cannot agree on scheduling decisions, and parents typically are allowed to modify the terms of the plan without requesting permission from the court. Any modifications should be in writing to avoid problems later on.
In cases where there is evidence of abuse, neglect, or substance abuse, a court may order supervised visitation. The court may order that visitation will be supervised by a qualified individual such as a social worker at a visitation center or a family member if appropriate. Supervised visitation may be terminated if a court orders that visitation will become unsupervised if a parent meets certain conditions such as consistently passing drug tests or attending parenting classes.
Sometimes things change after an initial custody determination. If there has been a material change in circumstances, a petition to modify a court's previous orders may be filed in the court that originally issued any previous orders. Examples of changes in circumstances that could potentially warrant a petition for a post-decree modification include the following:
- A parent has moved to a new location
- Remarriage of one or both parents
- One parent is refusing to comply with a court's orders such as the visitation schedule
- An arrest for a crime, especially if it occurred in the presence of the parties' child
- Evidence of substance or alcohol abuse
- Any change that has occurred since the last order was entered that could affect the welfare of a minor child
If there is an emergency situation that could endanger a child, it may be possible to request an ex parte emergency order restricting a parent's time with the child. An ex parte order is signed by a judge without the other party present if there are facts to suggest that continued visitation could pose a risk to a child. Ex parte orders are usually only granted for a short period of time until a hearing can be held on the issue in question.
If you feel a change has occurred that could affect your custody situation, it is important to file a motion to modify a prior decree as soon as possible. Waiting too long could adversely affect the outcome of your case.
Contact an Experienced Family Law Attorney Colorado Springs, Colorado
If you have questions about child custody and visitation, contact Colorado family law attorney Brett Chalmers for more information.