Who is entitled to allocation of parental responsibilities?
At least one of the child's parents is entitled to be allocated (given) parental responsibilities, unless there is clear and convincing evidence that both parents are unfit. A non-parent may petition for allocation of parental responsibilities if s/he has physical care of the child for a period of six months or more and an action is commenced within six months of the termination of such physical care.1 The judge will allocate parental responsibilities according to what s/he believes is in the best interest of the child.
If only one parent is granted allocation of decision-making responsibilities by the judge, the other parent may still be granted parenting time. For more information, you may want to read the CO Department of Human Services’ booklet, A Parent’s Guide to Visitation: How to Establish and Enforce Parenting Time.
C.R.S. § 14-10-123(1)(b),(c)
Can I get temporary allocation of parental responsibilities if I have a protection order against the other parent?
If a protection order is granted due to domestic violence, the order may include temporary allocation of parental responsibilities of minor children and temporary visitation. Be sure to tell the judge that you want temporary allocation of parental responsibilities during your protective order hearing so that the judge can take your request into consideration. It is important to note that allocation of parental responsibilities granted with a protection order expires with that order. The judge may also extend temporary orders as s/he feels is necessary.1 For more information, see How can a domestic violence protection order help me?
1 C.R.S. § 13-14-104.5(10)
Can a parent who committed abuse against me or my child get parental responsibilities (parenting time/decision-making responsibilities)?
Possibly. 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 give the offender parental responsibilities and before the judge can evaluate the "best interest factors" (explained in How will a judge make a decision about allocation of parental responsibilities?), the judge must consider the following:1
- When either parent has committed child abuse or neglect, that parent will not get mutual decision-making powers if the other parent or the child's legal representative objects to it.2
- If either parent has committed domestic violence (including a single act of domestic violence, a pattern of domestic violence, or a history of domestic violence), that parent will not get mutual decision-making powers if the other parent or the child's legal representative objects unless the judge believes that the parties are able to make decisions cooperatively in the best interest of the child in a way that is safe for the abused parent and the child.3
- When one of the parties has committed an act of sexual assault that resulted in the conception of the child, the judge is supposed to assume that it is not in the best interests of the child for that parent to get sole, split or mutual decision-making authority (however, the offender may be able to present evidence to overcome the judge's assumption). The judge is also supposed to decide if it's in the child's best interests to prohibit or limit the offender's parenting time with the child.4 Note: If the offender was convicted in criminal court of this sexual assault, see If my child was conceived due to a sexual assault, can the offender's rights to the child be terminated?
In any of the above situations, however, the primary concern of the judge is supposed to be the safety and well-being of the child and the abused parent.5 The judge is supposed to consider conditions on parenting time that ensure the safety of the child and of the abused party when creating (or approving) a parenting plan. This may include:
- an order limiting contact between the parties and allowing only contact that the judge believes is safe and minimizes unnecessary communication between the parents;
- ordering supervised parenting time or exchange of the child in a protected setting;
- an order restricting overnight parenting time;
- an order that the abuser cannot possess or drink alcohol or take controlled substances (drugs) during parenting time or for twenty-four hours prior to the beginning of his/her parenting time;
- an order directing that the address of the child or of any party remain confidential;
- any other condition that the judge believes is necessary to protect the child, the abused parent, or any other family or household member; and
- an order that requires child support payments to be made through the child support registry to avoid the need for any related contact between the parties.6
The judge can also order an evaluation to determine if the abuser should participate in a domestic violence treatment program and can require a report from the treatment provider regarding his/her progress. At any time, the judge can then order a new evaluation to determine whether additional treatment is necessary.7
Note: Even if the parent is no longer abusing you but you believe there is domestic violence occurring in that parent's home with his/her new intimate partner, this can be something that you may want to raise in court. The Colorado Legislature declared that a child has the right to be emotionally, mentally, and physically safe when in the care of either parent and has the right to live in and visit homes that are free of domestic violence and child abuse or neglect.8
1 C.R.S. § 14-10-124(4)(a)
2 C.R.S. § 14-10-124(4)(a)(I)
3 C.R.S. § 14-10-124(4)(a)(II)
4 C.R.S. § 14-10-124(4)(a)(III),(IV)
5 C.R.S. § 14-10-124(4)(d)
6 C.R.S. § 14-10-124(4)(e)
7 C.R.S. § 14-10-124(4)(f)
8 C.R.S. § 14-10-123.4(1)(b),(c)
If my child was conceived due to a sexual assault, can the offender's rights to the child be terminated?
Possibly, yes, if the offender was convicted of the sexual assault in criminal court. You can file a petition in the juvenile court to prevent future contact with the person who committed the sexual assault and to terminate the parent-child legal relationship1 if all the following requirements are met:
- the offender must have been convicted of an act of sexual assault against you or convicted of a crime in which the underlying factual basis was sexual assault against you;
- the child must have been conceived during that sexual assault;2
- the conviction must have been on or after July 1, 2013;1Note: "conviction" can mean a guilty plea (including one that was entered as part of a deferred sentence), a verdict of guilty by a judge or jury, a plea of "no contest," or, for a juvenile defendant, a disposition or adjudication of juvenile delinquency based on committing any act that constitutes sexual assault;3 and
- termination of the parent-child legal relationship of the offender is in the best interests of the child.4Note: The judge will automatically assume that termination is in the best interests of the child but the offender has the right to try to convince the judge otherwise.5
If you file this petition to terminate the offender's rights, the law states that your and your child's whereabouts must be kept confidential. In addition, the judge can grant any sort of protective measures in the courtroom if you request them - such as allowing you to not appear in court when the offender is present.6
1 C.R.S. § 19-5-105.5(3)
2 C.R.S. § 19-5-105.5(4)(a),(b)
3 C.R.S. §§ 19-5-105.5(2)(a); 19-1-103(29.3)
4 C.R.S. § 19-5-105.5(4)(c)
5 C.R.S. § 19-5-105.5(7)(c)
6 C.R.S. § 19-5-105.5(6)
I am not the child's parent. Can I get parental responsibilities of the child?
A person other than a child's parent can file a petition seeking parental responsibilities of a child in the county where the child permanently resides or in the county where the child is located if:
- The child is not in the physical care of one of the child's parents; or
- If the petitioner has had physical care of the child for a period of 182 days or more (and, if applicable, the petition must be filed within 182 days of the termination of that physical care); or
- If the petitioner has been granted custody of a child or has been allocated parental responsibilities through a juvenile court order.1
1 C.R.S. § 14-10-123(1)(b)-(d)