If you have children and are facing divorce, separation, or the need to define the roles of each parent in a child’s life, then the Best Interest of Child Test (“BIC Test”) will apply in your case.
The BIC test is the standard the court will use to finalize decisions on child custody and parental responsibilities, which include parenting time and decision-making responsibility under C.R.S. 14-10-124.
The final decisions will then be written into a Parenting Plan that is approved by an order of the family law court and binding on both of the parents. There is a great deal of literature and material out there about this test, you can find more information here.
Even where the parties agree about child custody and parenting time, and parental decision-making, the court has an independent duty to make sure that the agreements reached by the parents are in the best interests of the children.
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Determining Parenting Time and Custody Using Best Interests Test
Determinations of parenting time, which include visitation and custody, are made by the court after looking at the child’s best interests and hearing any evidence that parenting time may endanger a child’s physical or mental welfare.
In order to make a decision in regards to a child’s best interests the court will look at several statutory factors which include the following:
- child’s wishes, if they are mature enough to express reasoned and independent preferences,
- parents’ wishes,
- family relationships,
- mental and physical health of parties,
- The ability of a party to put the child’s needs ahead of their own,
- encouragement of love and contact between the child and the other party,
- history of domestic violence (if any),
- past involvement with the child, and
- physical location of the parties.
If the issue of endangerment is raised, the Court may hear the issue on an emergency or expedited basis. The Court will review any facts related to endangerment and then may restrict the parenting time of a party, or otherwise safeguard the child against such issues as child abuse, neglect, and domestic violence.
Balancing and determining the child’s best interests can be difficult in situations where a parent believes there is endangerment. There must be clear evidence to present to the court that endangerment exists, such as a police report evidencing domestic violence.
In many cases, this kind of evidence does not exist and your attorney may need to help you express your concerns as best as possible in order to protect the interests of your child.
The Wishes of the Child
The wishes of the child is often one of the most misunderstood factors relating to the determination of parenting time and parental decision-making. Contrary to popular belief, children may only make the final determination of parenting time when they have reached adulthood (age 18).
There is no earlier age in Colorado where children are permitted to make their own decisions about parenting time, unless they have been emancipated. Until age 18, the child’s wishes are merely a factor for the Court to consider.
Moreover, courts are often very hesitant to interview children as to their wishes, even when the children are nearly 18 years old. Instead, the court will typically look at the physical manifestations of the child’s wishes, or simply focus on the other factors.
Allocation of Decision-Making Responsibility Using Best Interest Test
Decision-making responsibility is about who should make common, but important decisions, such as what school a child should go to, what extra-curricular activates a child should participate in, determinations as to responsibilities related to raising a child within a certain religion, and what kinds of medical treatment a child should receive.
It is important to note that while medical decision-making authority can be allocated between the parties, that authority does not apply to emergency situations. Any party caring for the child has a duty to make sure that the child receives appropriate medical treatment in case of an emergency.
The court will allocate decision-making responsibility using the same factors used to determine whether parenting time is in the best interest of the child, including the factors of endangerment. In addition, the court will also look at the parties’ ability to:
- cooperate and make joint decisions,
- provide a positive and nourishing relationship, and
- promote contact between the parties.
The court may also look at the allocation of parenting time in order to determine who should make decisions. For example, in the court case of Griffin v. Griffin a parent retained the ultimate authority to select the child’s school because they were the parent with custody.
The Court will often allocate parental decision-making jointly between the parents. This can be ideal where both parents are able to put the child’s needs ahead of their own and where the parties have some ability to communicate and compromise.
The downside of joint decision-making is that when the parties can’t agree, they must either try to resolve the issue through mediation or arbitration, or they may be forced to bring the matter before the Court so that a judge or magistrate can decide the issue. This can add significant costs and delays to the decision-making process.
Implementing the Parenting Plan
Once the decisions have been made as to the best interests of the child for parenting time and decision-making, then the court can order a Parenting Plan that will outline visitation, custody, and decision-making responsibilities.
The Parenting Plan is the final plan that both parties will be expected to uphold. Every effort should be made by the parents to handle as many issues in the parenting plan as possible, up-front. It is impossible and impractical for a mutually agreed-upon parenting plan or a court-ordered parenting plan to account for every conceivable situation (although a mutually agreed-upon plan can usually do a much better job), but it is important that the plan account for those situations most likely to arise, as well as those most important to the parents.
Your attorney will often think of a number of parenting time issues that the parties would not have even considered, simply because an experienced domestic relations attorney has gone through many divorces and child custody disputes.
Modifications to the plan can be relatively easy where the parents are in agreement as to the modification. Where the modification is opposed by one of the parents, the process can be much more difficult and require a parent to show how circumstances have changed to justify the proposed modification. When the parties are not in agreement, only a judge or magistrate can alter the parenting plan, except in very specific circumstances.
Taking the Next Step to Define Parental Responsibilities
The next step is to meet with a Colorado divorce attorney at Cohen & Cohen to review your matter and protect your interests. We offer free consultations in divorce and child custody matters.
The attorney can initiate a divorce action by filing a Petition for Dissolution of Marriage or enter an appearance in your already ongoing divorce case. If your divorce case has already begun, it is important to get experienced legal counsel to help you navigate the process.
We Can Help You Protect Your Interests
If you need assistance in a matter involving parental responsibilities, at Cohen and Cohen, we can help you understand your rights, make important legal distinctions for better decisions, and provide professional representation in your visitation case.
To schedule an initial consultation to review your case with a Colorado Visitation Attorney at our convenient central Denver location call 303-933-4529 or contact us online.
