JUSTIN OLIVER

Anyone participating in a proceeding that allocates parental responsibilities quickly becomes aware of the phrase “best interest of the child.” Courts focus nearly of all their analyses around the best interest standard when allocating parenting time and decision making responsibilities. Section 14-10-124 of the Colorado Revised Statutes delineates nine factors courts must consider when determining what is in a child’s best interest as it pertains to parenting time, and an additional three factors for courts to consider in determining a child’s best interest as it pertains to decision-making responsibilities. 

Many of the best interest factors concerning parenting time are straightforward and pose little challenge to parties seeking to present their position to a court. The wishes of the child’s parents as to parenting time, for example, can be established through party testimony. The physical proximity of the parties to each other as this relates to the practical considerations of parenting time — another statutory factor — is typically addressed through stipulation (concerning the geographical distance between the parties) leaving party testimony to address the practical considerations of exchanging the children and transporting the children to and from school, appointments and extracurricular activities. 

Other statutory factors concerning parenting time are seemingly straightforward but frequently pose unique evidentiary challenges. For example, “the wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule” provides multiple evidentiary facets to consider. Is the child presumed competent to testify? If not, is a competency hearing needed to provide the child with an opportunity to convey his or her parenting time preference? Even if a child is competent to testify, most jurisdictions strongly discourage parties from having children testify in parental responsibility proceedings absent extreme or extraordinary circumstances.

There are a variety of other ways a child’s wishes can be communicated to courts. Some courts may allow testimony concerning statements made by a child that reflect the child’s wishes, despite those statements being hearsay. Using expert witness testimony concerning the factual basis for an opinion is another common way of introducing evidence that might otherwise be kept out as hearsay. Courts often learn the wishes of a child through experts such as child and family investigators, therapists, counselors, parental responsibilities evaluators, parenting coordinators and decision-makers. To learn the child’s wishes firsthand courts may interview the child pursuant to section 14-10-126(1).

One factor commonly emphasized by courts is “the ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party…” Parties commonly want to focus their evidentiary efforts on highlighting the shortcomings of the other party. Although the facts and circumstances of particular cases often do call for the introduction of evidence that allocates fault, the importance of demonstrating the positive behaviors of a party that support the bond between the child and the other party is often underutilized or overlooked. 

There are numerous ways in which parties can demonstrate their ability to nurture, strengthen and support the relationship between their child and the other parent through simple acts. For example: 

• a party can encourage and facilitate periodic phone calls or FaceTime/Skype sessions between the child and the other parent during their parenting time; 

• a party can encourage the child to display a picture of the other parent in their home; and

• the parent can encourage the child to discuss their failures and success with the other parent.

Additional statutory factors concerning the allocation of major decision-making responsibilities also fall under 14-10-124. Decisions involving a child’s education, medical and mental health treatment, and religious upbringing are considered major decisions by courts. Courts may allocate decision-making responsibility with respect to each issue jointly between both parties or individually to one party. The additional decision-making factors under 14-10-124 are:

• ability of the parties to cooperate and make decisions jointly

• past pattern of involvement of the parties; and

• whether mutual decision-making will promote contact.

Cases allocating decision-making responsibilities that involve allegations of domestic violence, child abuse or neglect present another major consideration for courts. In allocating decision-making responsibilities in these cases, courts must consider additional specific statutory requirements in determining what is in a child’s best interest. 

If a court finds a party has committed an act of domestic violence then 14-10-124 dictates that it shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party unless the court finds credible evidence of the ability of the parties to make decisions cooperatively in the best interests of the child in a manner that is safe for the abused party and the child. 

The exception found within this rule grants courts significant discretion in its application unlike in cases where courts find a party has committed child abuse or neglect. In child abuse and neglect cases, it shall not be in the best interests of the child to allocate joint decision-making over the objection of the other party, without exception. 

Findings of domestic violence, child abuse or neglect must be supported by a preponderance of the evidence. Courts generally give significant evidentiary weight to documentary evidence, including medical reports, police reports or reports created by social service agencies. Testimony conveying acts of domestic violence, child abuse or neglect should be as specific and detailed as possible to assist courts to determine whether specific behavioral incidences are abusive. 

Factors defining a child’s best interest on both parenting time and decision-making are not mutually exclusive. Often, evidence presented in support of one factor can be readily applied to others. While it is not necessary for trial courts to make specific findings on each and every statutory factor, there must be some indication in the record that the court considered the factors that were pertinent to the particular case before them. 

— Justin Oliver is an attorney at Divorce Matters.

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