Did You Know There’s No Such Thing As “Custody” in Colorado?

Many people starting the divorce process in Colorado are unaware that, technically, “custody” doesn’t exist in this state.  In 1999 the law eliminated the term “custody” and replaced it with the phrase “allocation of parental responsibility.”  However, the underlying meaning is very similar. 

Under the allocation of parental responsibilities, there are two major categories that must be addressed in a parenting plan.

Determination of Parenting Time

The first category is determination of parenting time. This refers to the schedule of time that the children spend with each parent (including the regular schedule, the holiday schedule and the vacation schedule).

Allocation of Decision-Making Responsibility

The second category is allocation of decision-making responsibility.  This determines how the major life decisions will be made for the children (generally education, religion, and non-emergency medical, dental and mental health decisions). Under the prior custody law, “joint custody” and “sole custody” meant which parent could make these decisions, but it was all-or-nothing.  If parents had joint custody, they made all of these decisions together.  If one parent had sole custody, that parent made all of these decisions by himself/herself.  There was no in-between.

Under the revised law, responsibility for these types of decisions can be allocated independently of each other.  For example, one parent can have sole decision-making for medical decisions; the other parent can have sole decision-making for education decisions; and they can have joint decision-making responsibility for religious decisions (or any other combination, including joint decision-making responsibility for all decisions).

Why did Colorado change this law?

I was one of the drafters of the 1999 allocation of parental responsibilities law, and I often get asked why the law was changed to eliminate “custody.” 

Based on the experiences of judges and attorneys, parents often got caught up in “winning” or “losing” custody; because custody encompassed all of the decisions, winning or losing this battle had huge repercussions. The other problem was that many times parents agreed on all issues except one (for example, they disagreed only about education). Because of the way the law was previously written, a disagreement about one issue could still cause a parent to lose the ability to participate in all decisions, because the “custody” law was all-or-nothing.

The revised law allows judges and parents to address each decision category individually. This allows parenting plans to be individually tailored for the children, and can prevent a parent being entirely left out of all decisions for the children just because the parents disagree on one issue.

One of the biggest benefits of mediation when there are children is that you create a parenting plan that fits your specific family.  When parents go to court and make the judge decide on parenting issues, court time is usually limited, and often the judge doesn’t have time or isn’t given the amount of information needed for a detailed, family-specific parenting plan.

In mediation, I have a list of questions that I review with you. I use those questions to create an individualized parenting plan for YOUR children.  We can include as much (or as little) detail as you desire.

Beth Henson

Many people are surprised by the number of provisions that should be part of a thorough, comprehensive parenting plan.  Paying attention to detail NOW often prevents conflict and confusion later. I’ve heard back from many parents after mediation who say they’re glad that I encouraged them to talk about and document specific issues up front.  I truly believe that the parents are the best people to decide their children’s post-divorce future; with experienced guidance, an agreed-upon parenting plan is much more likely to happen.