When does someone usually file for allocation of parental responsibilities?
Generally if you and the other parent are married and seeking a divorce, one or both of you may file for allocation of parental responsibilities as part of the divorce (dissolution) action or legal separation.1
If you and the other parent are already divorced, and one of you wants to modify (change) the allocation of parental responsibilities order, s/he can file a petition for a change in allocation of parental responsibilities in the county where the divorce was issued.
If you and the other parent were never married, either of you may file for allocation of parental responsibilities in the county in which the child has been permanently residing or in the county where the child can be found.2 For more information about whether or not to file, see What are some advantages and disadvantages for getting an allocation of parental responsibilities order? To find out what the process will be like for you based on your particular situation, please consult a lawyer in your area.
1 C.R.S. § 14-10-123(1)(a)(I)
2 C.R.S. § 14-10-123(1)(a)(II)
How will a judge make a decision about allocation of parental responsibilities?
When awarding allocation of parental responsibilities, the judge will consider what is in the best interests of the child, giving the highest consideration to the child’s safety and the physical, mental, and emotional conditions and needs of the child.1 In general, s/he will assume that frequent and continuing contact between each parent and the child is in that child’s “best interest” in most cases but the court recognizes that this is not always appropriate.2
When making a decision about parenting time the judge will consider all relevant factors, including:
- The wishes of the child’s parents as to parenting time;
- The wishes of the child if s/he is mature enough to state his/her preference as to the parenting time schedule;
- The interaction and relationship of the child with his/her parents, siblings, and any other person who may significantly affect the child’s best interests;
- The child’s adjustment to his/her home, school, and community;
- The mental and physical health of all people involved (Note: A disability alone cannot be a reason to deny or restrict parenting time);
- 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 will not be considered with respect to this factor);
- The past pattern of involvement of the parties with the child (considering the values shown, the time commitment made, etc.);
- How close the parties live to each other as this relates to a practical schedule of parenting time; and
- The ability of each party to place the needs of the child ahead of his or her own needs.
- Note: When a claim of child abuse/neglect, domestic violence or sexual assault that resulted in the conception of the child has been made to the court, or if the judge has reason to believe that one of these acts has occurred, before the judge can decide whether or not to grant parenting time, s/he must consider the factors discussed in Can a parent who committed abuse against me or my child get parental responsibilities (parenting time/decision-making responsibilities)? 3
When making a decision about parental decision-making responsibilities, the judge will consider all relevant factors, including:
- All of the factors listed above;
- If the parties can cooperate and make decisions jointly; (Note: The judge will look at the past pattern of involvement of the parties as one way to decide this);
- If an allocation of mutual (joint) decision-making responsibility on one or more issues would cause more frequent contact between the child and each of the parties;4
- Note: When a claim of child abuse/neglect, domestic violence or sexual assault that resulted in the conception of the child has been made to the court, before the judge can decide whether or not to grant decision-making responsibilites, s/he must consider the factors discussed in Can a parent who committed abuse against me or my child get parental responsibilities (parenting time/decision-making responsibilities)?
Note: The judge will not consider conduct of a parent that does not affect that parent’s relationship to the child5 and the judge will not presume that one parent is better able to serve the best interests of the child because of that person’s sex.6
In general, a parent will be given parenting time unless, after a hearing, the judge finds that parenting time would endanger the child’s physical health or significantly harm the child’s emotional development.3
1 C.R.S. §§ 14-10-124; 14-10-123.4
2 C.R.S. § 14-10-124(1)
3 C.R.S. § 14-10-124(1.5)(a),(4)(a)
4 C.R.S. § 14-10-124(1.5)(b)
5 C.R.S. § 14-10-124(2)
6 C.R.S. § 14-10-124(3)
Can I get temporary allocation of parental responsibilities in Colorado?
If you have recently arrived in CO state, and CO is not the home state of the child, a federal law called the UCCJEA allows for a person to file for temporary emergency custody in a state other than the home state if:
- the child is present in the state; and
- the child has been abandoned OR it is necessary in an emergency to protect the child because the child, a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse.1
If the child’s home state is CO, and you are currently in the middle of a custody proceeding, it may be the case that temporary parental rights and responsibilities orders may issued while the case waits to be resolved through trial or a settlement where a final order will be issued. Please speak to a lawyer who is familiar with CO custody laws to find out for sure whether or not this may be available in your county and in your situation. For lawyers, go to our CO Finding a Lawyer page.
For more information, please see Can I get temporary emergency custody? in our general parental kidnapping section.
1 C.R.S. § 14-13-204(1)
If I leave the home because of domestic violence, will this hurt my chances of getting parental responsibilites?
According to the law, if you are absent or leave the home because of an act or threatened act of domestic violence by the other parent, your absence is not supposed to be a factor used by the judge in determining the best interests of the child.1
If you have not yet left the home, you may want to get help to make a plan that will allow you to safely and legally take the children with you when you leave. If you want help doing this, you can talk to a lawyer who has experience with domestic violence and custody issues and/or a domestic violence advocate in your area. See our CO Places that Help page.
1 C.R.S. § 14-10-124(4)(c)
After I file for allocation of parental responsibilities, can I take my child out of state? Are there any other restrictions?
Once either parent files a petition concerning the allocation of parental responsibilities, there is an automatic temporary injunction (order) against both parties stating that both parties cannot:
- bother or disturb the peace of the other party (which can be enforced by the police);
- remove the child from the state without the consent of all other parties OR an order of the court; and/or
- cancel, modify, or stop paying premiums on a health insurance policy that provides coverage to the child or a life insurance policy that names the child as a beneficiary unless:
- the parent gives all parties at least fourteen days’ notice; and either
- all parties consent to the cancellation or change in writing; or
- the judge allows the change or cancellation in a court order.1
- the parent gives all parties at least fourteen days’ notice; and either
These restrictions becomes effective on the party who files the petition immediately upon filing; they become effective on the other party when s/he is served.1 They stay in effect until the judge enters the final custody order, dismisses the petition, or enters an order modifying the injunction’s restrictions.2
Note: If either party files for divorce, the same restrictions apply (as well as an additional restriction against transferring, concealing, or getting rid of marital property).3
1 C.R.S. § 14-10-123(3)(a),(d)
2 C.R.S. § 14-10-123(3)(b)
3 See C.R.S. § 14-10-107(4)(b)
Will my child get a lawyer appointed to represent his/her interests?
Possibly. When awarding allocation of parental responsibilities, the judge can appoint a lawyer to serve as the legal representative of the child. It is the legal representative’s responsibility to represent the best interests of the child with respect to custody, allocation of parental responsibilities, child support, the child’s property, parenting time or any other issue related to the child that is identified by the legal representative of the child or the court.1
Either or both parents may have to pay the fees of the child’s legal representative unless the parent(s) are determined to be indigent (poor), in which case the state will pay the fees.2
1 C.R.S. 14-10-116(1),(2)
2 C.R.S. 14-10-116(3)(a)
Do I need a lawyer?
You do not need a lawyer to file for allocation of parental responsibilities. However, it is highly recommended that you get a lawyer to make sure that your rights are protected. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our CO Finding a Lawyer page.
If you are unable to get a lawyer to help you and you plan to file for custody on your own, you may want to visit the CO Courts website, which provides links to paperwork you need to fill out and file with the court. Even if you plan on representing yourself, you should try to have a lawyer review your papers before you file them.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Can I change the state where the case is being heard?
Maybe. If you move to another state, you may be able to change the state where the custody (PR &R) case is being heard. You may have to ask the judge that is hearing the case to change the jurisdiction of your case to the new state.
For information on trying to modify a final CO custody order in another state, or an out-of-state custody order in CO, please see our Changing a final custody order page in the general custody information section. This will tell you what factors a judge should consider when deciding whether or not to transfer your case to a new state.
The custody process is often complicated, especially when trying to figure out if you can move your case to a new state. Therefore, we recommend that you talk to a lawyer about any custody questions you have. To find legal services in CO, go to our CO Finding a Lawyer page. To find legal services in a state other than CO, select that state from the Places that Help tab on the top of this page and then click Finding a Lawyer.
In which state do I file for allocation of parental responsibilities?
The general rule is that Colorado state courts have authority to hear a custody case if CO is considered your child’s “home state”.1 A child’s “home state” is generally the state where the child has most recently lived with a parent (or a person acting as a parent) for at least 6 consecutive months. In the case of a child less than 6 months old, the “home state” is the state where the child has lived from birth. A short, temporary absence from the state does not change anything.
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, either you or the other parent can start a custody action in the state in which your child most recently lived for at least six months.
Example: If a family has lived in MT for one year and then one parent moved to CO with the children and filed in CO after living there for only four months, CO is still the home state. CO would likely not have jurisdiction (power) over the custody of the children.
There are exceptions to the “home state rule.” For more information, please see the following section, What are the exceptions to the “home state” rule?
1 C.R.S. § 14-13-102(7)(a)
What are the exceptions to the "home state" rule?
There are exceptions to the home state rule. In some cases, you can file for custody in a state where the children and at least one parent have significant connections. Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction.1 This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. For a list of legal resources, please see our CO Finding a Lawyer page.
Another exception to the home state rule exists in the case of filing for temporary emergency custody in a state that a parent and child have recently arrived in.2 See Can I get temporary allocation of parental responsibilities in Colorado? for more information.
1 C.R.S. § 14-13-201(b)
2 C.R.S. § 14-13-204(1)