Five Things to Know about Child Custody Cases

By Craig Chambers, Attorney At Law

The Littleton Lawyer

Vol 1.20    March 17, 2019

As a family law and divorce attorney practicing in Littleton, Roxborough, Ken Caryl, Highlands Ranch, Denver, Centennial, Lakewood, and the surrounding areas, I often go to court on child custody matters. Here are five things to know about child custody cases.

The factors for where the child will reside as his primary resident are set forth in C.R.S. 14-10-124. The underlying standard is the court will determine child custody cases based on what’s in the best interests of the child.

First, what’s in the best interests of the child is not necessarily what a parent believes is in the child’s best interest. It’s not who has a nicer home or a better job. It’s up to the magistrate or judge assigned to the case, and it can vary depending on who the judge is. It’s what the court determines, after a hearing, based on the factors in the statute, as to what’s in the child’s best interests.

Second, in Colorado, there is no presumption of a 50/50 parenting plan. There are the nine factors in the statute for the court to consider, including the drive between the parents residence, the history  of involvement  between the parents and the child’s age, other relationships, school and adjustments to the community.

Third, the public policy of Colorado is to encourage the child to have a relationship with both parents. If one parent endangers the child physically or psychologically, it is possible to have the other parent’s parenting time restricted, or even supervised. These situations are rare and the underlying facts must be severe. In most cases, even if you don’t approve of your ex, he or she is likely to get reasonable and liberal parenting time.

Fourth, the child doesn’t get to choose his or her parenting time. Not even as a teenager. If the child is mature enough to express an independent and reasoned opinion the court can consider the child’s wishes. But the child can’t testify for one parent and against another.  Children can’t be witnesses.  Most judge’s  wont’ even allow the child to be questioned by the judge in chambers in a judicial interview.  You should never include your child in parenting or custody decisions. It forces the child to choose between his or her parents and it is harmful to the child.

In short, do not, under any circumstances, put the child in the middle of the parenting dispute.

Fifth, several of the factors in the statute relate to how well the parties get along. “The parties ability to encourage sharing of love, affection & contact between the child and the other parent”  “whether the parties past involvement shows a system of values, time commitment, and mutual support.”  “The ability of each party to place the needs of the child ahead of his or her needs.”

What’s best for the child is for you to communicate with your ex. Disparaging the other parent, or exaggerating about the other parents’ faults or misconduct is likely going to backfire. Colorado is a no-fault state. Unless your ex’s past conduct endangers the child the court won’t look at the parties’ misconduct.

Never disparage the other parent, especially in front of the child.

Custody disputes can be overwhelming and stressful. The best thing you can do in a custody dispute is to be the mature one:  encourage stability for the child’s sake.  Encourage the relationship between the child and the other parent.

Just because you and your ex may no longer get alone, what the court looks for in a custody dispute is which parent is most likely to put their differences aside and encourage a stable and supportive environment for the child.

5 Things to Know About Common Law Marriage

 By Craig Franklin Chambers, Esq

 The Littleton Lawyer

Family Law Blog  Vol 1.9. January 21, 2019

 As an attorney focusing in family law, marital law, divorce and child custody cases in Littleton, Englewood, South Jeffco, Englewood, Ken Caryl, Roxborough, and Highlands Ranch, here are five things to know about common law marriage.

First, Colorado is one of a handful of states that still recognizes Common law marriage. This important because your rights as a married person are greater than your rights as a non-married person simply cohabitating. To prove common law marriage in Colorado, you must show that you cohabitated with your partner and held yourself out to the public as married.

Second, there is no time period of cohabitation that results in common law marriage. Once you are married  under the common law, you are married just as if you had obtained a marriage license.

Third, there is no common law divorce. Even if you are separated for years, once you are married, you are married until you go to court and get a divorce.

Fourth, the hardest part of proving a common law marriage is the second element: holding yourself out to the public as married. Many things a couple does that resembles what married couples do such as having children, buying a home, or having a joint checking account doesn’t prove that the parties held themselves out as married. Generally, unless you and your partner signed something stating you are married, or filed tax returns or insurance forms representing yourself out as a married couple, the court will not find you to be married under the common law.

Fifth, if you believe you are common law married, you file a dissolution of marriage just like a regular divorce.  If your partner disputes that you are married, the court will hold a hearing as to this issue. If you win the hearing, the divorce proceeds; if not, the divorce is dismissed for lack of jurisdiction because you were never married.

FIVE WORST THINGS YOU CAN DO IN A DIVORCE

Family Law/Divorce Law Blog, Vol 1.7

March 25, 2018

by Craig Franklin Chambers, Esquire

The Littleton Lawyer

As a divorce, marital and family law attorney, practicing in Littleton, South Jeffco, Ken Caryl, Denver, Highlands Ranch, and the surrounding areas, I have some tips that will prevent you from doing the five worst things you can do in a divorce.

First, not following the court’s Temporary Injunction. There is a temporary injunction automatically placed when the divorce is served, preventing one party from leaving Colorado with the children or from spending and dissipating marital assets except for necessities without the other parties consent.

Once the divorce is filed, the assets of the marriage are essentially legally frozen, and it is one of the worst things to do to either take the children out of state — even if its for a vacation — or spend the marital assets– without the other party’s permission.

Second, not being truthful in your financial disclosures.  Steal little, steal big. You are required to fully and truthfully disclose your assets and debts within the time frame set by the court. One of the worst things you can do is lie about your finances or omit some of them. If it appears you are not truthful —  or you don’t submit adequate documentation to support your disclosures — you will lose your credibility with the judge. One your credibility is gone, it is gone for good. Disclose every asset no matter how small, and no matter if the other party doesn’t know about it.

Third, sending texts, emails, or phone calls with profanity and derogatory comments regarding your soon-to-be-ex. Divorces are emotionally charged, to be sure. But take a pause before you tell your soon-to-be-ex to go to hell or to f*ck off or other negative or inflammatory comments. No matter how upset or betrayed you feel, be professional and civil in your communications. These texts will inevitably show up in court and they sound  awful out of context. This is one of the worse things you can do in a divorce.

Fourth, putting the children in the middle of the divorce. Communicating to the other parent through the children, discussing the case with the children, bad-mouthing your soon-to-ex in front of the children or putting the children in the middle is one of the worst things you can do in a divorce. This damages the children and the judges see you in a negative light. You are an adult, and you should leave the children out of theses disputes.

Fifth, failing to follow court orders. Whether it’s a mediation order or the court-ordered parenting class, failure to follow court orders shows the court disrespect, and it is one of the worst things you can do in a divorce. Judges expect litigants to follow their orders. If you blatantly disrespect the judge you are asking him or her to side against you. Even if you think you are the best parent in the world, placate the judge and follow his orders. Attend the mediation and take the parenting class within the time required by the court’s orders.

What to Do When a Separating Unmarried Couple Owns a Home

Family Law/Divorce Law Blog, Vol 1. 6

February 19, 2017

by Craig Franklin Chambers, Esquire

The Littleton Lawyer

As a Divorce, Marital,  and Family Law attorney,  practicing in Lakewood, South Jeffco,  Littleton, Ken Caryl, Roxborough, Denver, Highlands Ranch and the surrounding areas, I run into unmarried couples who jointly own a home or other real estate.

When a married couple owns a home, and the couple divorces, the domestic statutes apply, and the interests of the parties in the home are protected and litigation in the divorce proceedings.

When the couple is unmarried, and the couple separates, the domestic statutes apply to issues of children of the relationship, but do not apply to property division; and the recourse to settle disputes over the property are brought in a Partiton Action made pursuant to C.R.S.  38-28-101.

This situations occurs, for example, if couple jointly owns a home, and upon separating, can’t agree on whether to sell the property,  how to sell the property, how to divide the proceeds, or the terms of sale.

In filing the partition action, the first thing to remember is that all parties of interest need to be joined in the action. That includes the Homeowner’s Association, lenders, etc.  If a party is not jointed, the case will likely be continued until all of the parties are joined.

The second thing, once the parties are joined, the court will first determine if the property can be divided equally and fairly, without manifest prejudice to the parties.  If the property cannot be divided fairly – for example, in the case of a  residential  home or a condo – the court will order the property sold and the proceeds divided in proportion to the parties’ interest in the property.

The third thing, along with the proceeds being divided in accordance to the parties interest in the property, the court will make adjustments to the parties proceeds based on contributions that the made to preserve and protect the property.

These adjustments can be contentious. One party may claim the repairs made to the home by the other were unnecessary or too costly.  Because of this, although a partition action is  usually a question of math as to who contributed what to the property, the cases can be expensive.

My best advice is to either: reach a written partnership agreement regarding how to dispose of the property is the couple separates prior to buying the property ; Or  cooperate with the other co-owner and agree on a realtor to sell the property

The court can’t change the proportional interest you have in the property. The court can’t refuse to sell the property if you have interest in the property. All the judge  can do is either divide the property or order it sold, making adjustments for the parties contributions as the court deems fairs and equitable.

In most case, the cost of the partition action will far exceed the benefits you might receive from the court.

How long does Divorce take?

How Long Will My Colorado Divorce Take?

Family Law Blog (Vol I.5) 

by Craig Franklin Chambers, Esq. The Littleton Lawyer.

January 14, 2017

As a marital law, family law and divorce lawyer practicing in Littleton, South Jeffco, Denver, Highlands Ranch, and the surrounding areas, this question often arises:  How long will my divorce take? The answer: it depends.

Under Colorado law, there is a mandatory ninety-one day waiting period from the time the  Petition for Dissolution is filed and served to the day the Judge is legally authorized to sign the final divorce decree.  The parties need to agree on all the terms of the divorce. All financial disclosures need to have been exchanged and if there are children, the court-mandated parenting class needs to be completed by both parents. As far as the final paperwork for a divorce, a Separation Agreement, an Affidavit of Non-appearance and a Decree for the court’s signature need to be submitted to the court.

The Decree is a standard form that recites the necessary facts to meet the jurisdictional requirements  for the divorce. It is the document that actually divorces the parties. The Affidavit of Non-Appearance is  a standard form signed under oath by each party that each has received full financial disclosure and that each understands and is satisfied with the terms of the agreement. Even if the divorce is non-contested, if minor children are involved, the Court may hold a brief “Non-Contested Permanent Orders Hearing” to make sure the parties are truly in agreement and that the terms are fair.

The term “Separation Agreement” is  confusing. Although the term “separation” does not necessarily denote finality, the Separation Agreement is the parties’ permanent agreement as to both financial and parenting time matters.  The term “Permanent Orders” refers to a final order adjudicated by the court after a hearing.The Separation Agreement refers to an agreement or agreements made by the parties without going to court.

The Separation Agreement is final, and financial issues such as spousal support and alimony, division of property, assets, and debts can only be modified in rare circumstances. Children’s issues of parenting time and child support can be more easily modified as the needs of the children evolve.

The Separation Agreement is attached to the Decree and becomes an order of the court. Its  terms are enforceable only by a contempt proceeding. Because it is a final adjudication of the division of the financial aspects of the marriage, it is crucial that each party fully agrees to and understands the terms of the Separation Agreement.

As for the timing of the divorce, after the case is filed, the court will hold an initial status conference and issue a case management order setting forth the court’s requirements for setting a court date.

Usually the case management order  requires full financial disclosures, completion of discovery, and a good faith  attempt at mediation before scheduling a Permanent Orders Hearing. In the interim, temporary issues such as who resides in the marital home, how the bills are handled, and where do the children reside, can be resolved by agreement or by a brief two-hour Temporary Orders Hearing. 

The time period for a contested divorce depends on how complicated the case is and how willing or unwilling the parties–and their lawyers are– to either prepare for or resolve the outstanding issues. Many of these issues are complicated by personal resentment and feelings of betrayal and guilt for the collapse of the marriage. The more issues left unresolved, the longer the hearing is required, and the fewer the dates that are available with the court’s docket.

In a contested divorce, unless the parties agree on all the outstanding issues, from the time the case is filed and served to a Permanent Orders hearing, usually takes about a year.

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