What is the “Best Interests of the Child”?

parent-child hands

Whether it is an action for the allocation of parental responsibilities or an action for divorce, Colorado’s standard for determining parenting time, residential custody, and decision-making is called the best interests of the child. It can be found at Colorado Revised Statutes, 14-10-124. The purpose of this standard is to nurture a loving relationship between the child and both parents and to give the child frequent and continuing contact with both parents, where appropriate.

The point of this standard is to put the needs of the child above those of the parents and to accommodate those needs as much as possible given the particular circumstances. The child’s safety, physical/mental/emotional well being, and needs are given predominant consideration by the court. Consideration is also given to extenuating circumstances such as a history of domestic abuse, child neglect/abuse, convictions for sexual assault, and other crimes related to children.

Father-Son

Statutory factors include:

  1. The wishes of the child’s parents as 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;
  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;
  4. The child’s adjustment to his or her home, school, and community;
  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;
  6. The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party’s protective actions shall not be considered with respect to this factor;
  7. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
  8. The physical proximity of the parties to each other as this relates to the practical considerations of parenting time; and
  9. The ability of each party to place the needs of the child ahead of his or her own needs.

Colorado Revised Statutes, 14-10-124 (1.5).

Father-Daughter

As you can see there is no presumption that a mother is more qualified to care for the child more than a father. Although some allowances are made if the child is an infant, it certainly depends on the facts of the individual case. Factors which weigh in the Court’s decision are claims of child abuse/neglect, domestic violence, or sexual assault (especially as applied to children who are conceived as a result of that assault). This can also affect decision-making allocation.

In decision-making, even if the above conditions exist, if the parties show they have been able to make decisions for the children together in the past the Court may be inclined to grant joint decision-making. There are also circumstances in which the Court would grant sole decision-making for the safety and and well being of the abused party and the child. See, Colorado Revised Statutes, 14-10-124 (1.5)(b).

Mother-SonMany times a Child and Family Investigator (“CFI”) or Parental Rights Evaluator
(“PRE”) is appointed by the Court to provide a neutral perspective on the situation and what is in the best interests of the children involved. The costs of a CFI or PRE vary from $2,000 to more than $10,000. After evaluation and investigation these experts file a confidential report to the Court with a summary of their findings and recommendations about the children. These reports are sealed from outside viewing, but the parties and their attorneys, if applicable, will also be given copies. Colorado Revised Statutes, 14-10-116.5 and 14-10-127.

In 2013, this statute was amended to make more specific provisions for situations involving domestic violence/abuse, child abuse/neglect, and perpetrators of sexual assault. If the Court finds there is a believable history or sufficient evidence that any of these factors exist the Court can restrict parenting time to the perpetrating party, order counseling or evaluations, enter protective orders, and other relief to provide that the victim and the children are protected while still preserving the rights of the offending parent.

Every case is different and you should always consult with an attorney about the options and your rights in any case dealing with parental responsibilities (divorce, neglect or custody cases). Foremost the Court is going to do what will protect, nurture and promote a loving relationship between every child and both of their parents. The goal is to impact the children as little as possible even though their parents are no longer together.

Written by June F. Bourrillion, Esq. for http://www.rkymtnlaw.com

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