Say It Isn’t So!

Black silhouette of a baseball player In 1919 “Shoeless” Joe Jackson was part of a group of Chicago White Sox players who were accused of “fixing” the 1919 World Series. During the investigative proceedings a reporter for the Chicago Daily News wrote a column for the paper titled, “Say It Isn’t So,” which expressed his hope that Joe Jackson did not participate in fixing the series. While the jury is still out on Joe, I find that parents often need to hear those things they do not want to during a divorce, child custody case or child support matter.   For example, many mothers argue that young children should be placed with them because they are better suited to parent based upon their being mom. This is often referred to as the “tender years” doctrine; however, this is simply not the case here in Colorado. In fact, the Colorado legislature has declared both parents should be active participants in the lives of their children.

In Colorado, the courts rely upon what is called the “best interests” standard. This standard is codified in 14-10-124, C.R.S. This statute outlines the factors a court is to consider in making a determination of parenting time. I have found in my experience that judges try very hard to do what is right for the children in a case, but understand they are making a decision based upon a few hours exposure to the parents.  This is why in many cases a negotiated settlement regrading parenting time is often best.

What if there is abuse or neglect? In these cases a parenting expert might be required. These often take the form of a Child Family Investigator or a Parental Responsibilities Evaluator. These professionals conduct an investigation and make a report to the Court. The problem is that an expert can be very expensive, so it is important to consult with an attorney to see if an expert is warranted. If you cannot afford an expert do not despair; frequently, the behavior of the offending parent is so egregious that a judge does not need an expert to tell them what is best for the children.

Another myth I encounter is the one in which one parent will tell the other that the kids will make their own decision at a certain age. Colorado law does allow a court to consider a child’s wishes, but rarely (like never) will a judge allow a child to make a choice. Moreover, judges rarely allow children to testify unless they are 18, so often the only way to hear what the children want is through an expert.

Yet another thing I sometimes hear is that child support and parenting time are linked. They are not. A parent can have parenting time and be behind on court ordered support. So, do not deny parenting time if child support is owed; if you do you will be on the hot seat.

I also sometimes hear one parent say that they cannot afford to pay child support. This argument will not get you anywhere. Child support is determined by the gross income of the parties, the number of children and the number of overnights each parent has with the children. The court is not concerned about your truck payment or your rent; it is concerned about the children receiving the support they need. Remember your gross income is the amount you earn before any deductions are paid. It is also important to note for military members that their gross includes all the compensation they receive.  And while I said child support does not necessarily impact parenting time, it can if a court finds that by failing to pay child support a parent is not placing the needs of their children ahead of their own.

I hope I have shed a bit of light on these issues but, as I hope has become clear, ask an expert before you proceed on an assumption that might just be a myth. Don’t have a judge say to you, “it isn’t so.”  Contact us if we can help.

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