Real Estate Lawyer and Denver Divorce Blog. (Vol 1.20) November 14, 2013

By Craig Franklin Chambers Esq. 7851 S. Elati Street #204, Littleton, CO 80120

The Littleton Lawyer.

As a law firm specializing in real estate law and divorce and family law in Highlands Ranch, South Jeffco,  and Littleton, Colorado,  I often handle disputes over child custody. If it is simply a Colorado child custody case, the issues are usually parenting time, visitation, decision-making and child support.  If it is a divorce, the case also includes division of the parties property, assets and debts. Both are usually brought under Title 14.

A case  begins when one of the parties files and serves the Petition for Allocation of Parental Responsibilities or Dissolution of Marriage. The first step is for the court to  automatically set up an initial status conference for the parties with either a court facilitator or a magistrate. At the status conference, the parties exchange their financial statements, and the court facilitator or magistrate explains the fundamentals of the proceeding.

The parties are given a deadline to submit the final paperwork for the divorce or child custody determination.  If the parties cannot agree and complete the paperwork--a Separation Agreement, which includes a detailed Parenting Plan, an Affidavit of Non-appearance, and a Decree--- for a non-contested proceeding by the court's deadline, the parties are ordered to attend mediation with a neutral third-party mediator. If mediation is unsuccessful, a permanent orders hearing is set.

In the meantime, the parties are left without orders. Without Temporary Orders, the only binding orders on the parties are the court's temporary restraining order contained on the summons. This injunction prohibits either party from removing the child from the state and from wasting or disposing of the assets without the other parties' consent except for the necessities of life.

This creates problems for a separating couple because while the parties are trying to separate themselves financially, many of their fiscal obligations are joint. There are no orders as to who will pay which of the monthly bills and who will reside in the marital home. There are no established, enforceable orders regarding where the child resides, child support, or child visitation.

If the parties can't agree on these issues, it is common to request Temporary Orders as to temporary spousal maintenance, temporary child support, and temporary child custody. This is usually requested by motion or at the initial status conference. Most courts will allow a quick 2 hour hearing on temporary orders.

The purpose of the temporary orders are to help the parties survive financially until the permanent orders hearing which could be several months down the road. The orders are "without prejudice" which means they are not binding on the court for permanent orders.

However, despite the statutory mandate that the temporary orders are without prejudice, it is important to remember that a child custody case is an equitable proceeding. That means the court will apply the statutory factors as well as consider issues of fairness in rendering its decisions.

While the temporary orders are not binding, the court can consider whatever evidence is brought up at the temporary orders hearing.  In this type of case, the stability of the child is a paramount consideration.

It is important to understand the nature of temporary orders. There could be a long lag of time between the time the Petition is filed and the final hearing. Whatever orders are placed temporarily--either financially or for child custody--- can become the status quo.

For example, if the child is placed with one parent over the other temporarily, and the child gets accustomed to that environment, gets used to his new school, and appears to thrive in his new environment, that becomes the status quo for the child.

Even if the parenting plan was supposed to be temporary, in applying the best interest standards as set forth in C.R.S. 14-10-124 and C.R.S. 14-10-129, the court is reluctant to change a parenting plan that it seems to be working.  In that sense, practically speaking, temporary orders may be legally temporary or without prejudice but in practice they often become the permanent order.

It is important to properly investigate, negotiate, or litigate temporary order issues early on, and set  a desirable pattern  and precedent for the child. When it comes to disputes of custody, visitation, allocation of parental responsibilities, decision-making  and parenting time, these types of cases are often lost or won on Temporary Orders.