Divorce Facts

Custody

When there are minor children in a marriage, the keystone issue is usually custody. In the best of cases, the parties will agree on custody and then move on to the next issue. However, in many cases, the parties disagree on the division of time the children will spend with each parent and the court becomes involved to some degree. There is a multitude of ways that custody can be structured, including joint custody, sole custody, or some variation of that. To understand the process, you must understand what these terms mean.

Joint Custody: This is a situation where the children spend high percentages of time at each home. It can be a straight 50-50 custody where the children will spend an equal amount of time in each home, such as a week on/week off schedule. There can also be joint custody when one parent has less than 50% time. That is, the children may spend more time with one parent, but also spend a significant amount of time with the other. For instance, there can be a situation that the children will spend the school year with one parent and then most of the summer and school year weekends with the other. In order to have a pure joint custody with an equal time-share, the parties must live geographically close to one another. That is, if the children are school age, they will be switching houses while attending school. Accordingly, the parents have to live close enough to the school to allow a convenient drop off at school. When there is a geographic problem, one parent will have less time. Which parent gets the school year and how much time the other parent gets are often the subject of substantial disputes.

"Sole Custody or Primary Residence": This is a situation where the children live primarily with one parent with the other parent having the child for periods such as alternate weekends, alternate holidays, and such additional time as can be agreed or ordered by the court. The weekend time can vary and can also be accompanied by weekday time on the alternate week such as an overnight or dinner visit. There are obviously, an infinite number of options.

Procedure to Determine Custody: The procedure to determine custody begins with a discussion between the parents to try and resolve the problem on their own. If the parties cannot reach an agreement, the court will hold a hearing to determine custody either on a temporary or permanent basis. If either party requests it or the court determines that the issues are too diverse, the court will refer the matter to a custody Evaluation. By this process, the court will appoint a psychologist who will make an in depth investigation and evaluation on the circumstances of the parties. They will interview both parties, speak with the children, have home visits, and other things appropriate to determine custody, often including psychological testing.

All their findings and recommendations will be incorporated into a long report, which will be submitted to the court. That will be reviewed by a judge and with the recommendations being usually adopted. If either party disagrees with the evaluation recommendation, the matter can be set for a contested hearing at which time the judge will listen to the evaluator, the parties, and other witnesses that the parties wish to bring. The cost of an evaluation usually runs $4,000 to $6,000, though it can go higher in complicated cases.  These fees are paid directly to the evaluator with the court retaining jurisdiction to allocate how this cost will be divided between the parties.

Another alternative is that the court can, if appropriate, assign it for a Colorado Family Investigation or CFI. This is not done in every case. But is a shorter, less expensive alternative.